Tuesday, January 26, 2016

Sanctions, and frauds on the court.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion, made only one day after the court, at oral argument, denied a motion made by plaintiff seeking nearly identical relief. The evidence does not support a finding of civil contempt against defendant, as there is no showing that defendant violated an order of the court, pursuant to Judiciary Law § 753[A].

Neither was  defendant's cross motion seeking sanctions frivolous, pursuant to 22 NYCRR 130-1.1. Although the motion court denied defendant's cross motion, it correctly admonished plaintiff for her multiple after-hours telephone calls, and for her communications threatening to report defense counsel to the disciplinary committee unless his firm withdrew as counsel.

Defendant did not commit fraud upon the court by providing it with a copy of a redacted email from plaintiff. The redactions were obvious and involved settlement negotiations.  In addition, defendant obtained an unredacted copy of the email for the court's review and read almost all of the email into the record at oral argument, except for the proffered settlement amounts.

Student note:  The Appellate Division found that discovery sanctions, such as striking defendant's answer, are unwarranted, pursuant to CPLR 3126. Although defendant failed to appear at a nonparty deposition, it contacted plaintiff in advance and advised her that the witness could not appear on the date she had selected.

Case:  Pezhman v. Chanel, Inc., NY Slip Op 00427 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Comity, and foreign divorce decrees.