At an IAS Term, Part 27 of the Supreme Court of the State of New York, held in and for the County

of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 1st day of April 2008

Justice CONGREGATION YETEV LEV D'SATMAR, INC., LUDOVICK WEISZ and JACOB SCHONFELD, Plaintiffs DECISION AND ORDER -againstIndex No. 13224/90 NACH:'dAN BRACH INC. W a 26 ADAR N.B. COW.. CONGREGATION BETH JOEL, BETH FEIGE INC., NACHMAN BRACH and BAY RIDGE FEDEF AL SAVINGS AND LOAN ASSOCIATION, Defendants.

Papers Numbered Notice of MotiodAffidavits (Affirmations) Annexed Notice of Cross-Motion/(Affirmations)Annexed

Renly Affirmation and in Further Support of the Motion
2

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The only remaining issues in this 18-year-old case are counterclaims by defendants Nachmin Brach, Inc. W a 26 Adar N.B. Corp. (Adar) and Nachman Brach, for the use and occupancy of the premises at 533-541 Bedford Avenue, Brooklyn, New York, as a synagogue by plaintiffs Congregation Yetev Lev DSatmar, Inc. (CYL), and the other plaintiffs. However, defendants have failed to fully comply with five discovery orders issued by me. Plaintiffs move, pursuant to CPLR 5 3 126 (3), by order to show cause: to strike the remaining counterclaims of the Brach defendants and dismiss the action with prejudice due to defendants failure to comply with my orders of November 17,2006, March 2, 2007, and July 6,2007; and, for $10,000 in attorneys fees for four motions to strike that were prosecuted due to defendants improper conduct ($2,500.00 per motion). The Brach defendants cross-move, pursuant to CPLR 6 3 103 (a), for a protective order to limit and regulatc the deposition of Nachman Brach. The Brach defendants and their counsels clear pattern of dilatory and obstructive conduct, demonstrated by their continued disobedience to Court orders, leaves the Court with no choice other than granting plaintiffs order to show cause and dismissing the instant action with prejudice. This renders defendants cross-motion moot.
Backwound

Litigation in this real estate dispute commenced in 1990, but the genesis of this matter, dealing with the ownership of five real property parcels at 533-541 Bedford

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Avenue, Brooklyn, New York, occurred approximately thirty years ago, with a series of real estate transactions amidst the subsequent factional schism in the Satmar Hasidic community. The tortured and tangled history of this dispute is chronicled in a decision of Justice Melvin Barasch, Congregation Yetev Lev DSatmar, Inc. v Kahan ( 5 Misc3d 1023
(A) [Sup Ct, Kings County 20041) and my decision (Congregation Yetev Lev D Satmar,

Inc. v 26 Adar N.B. Corp. (12 Misc3d 1173 (A) [Sup Ct, Kings County 20061). Rabbi
Joel Teitelbaum, in 1948 incorporated the Sat]nar community as Congegation Yetev Lev DSatmar, Inc., and became the Grand Rabbi C.)rSatmar Rebbe. The Satmars flourished in the \;,!illiamsburg section of Brooklyn, and Rabbi Joel Teitelbaum established in 1974 another Satmar community (later named Kiryns Joel) near Monroe, New York, in Orange County. After Rabbi Joel Teitelbaums death in 1979, his nephew Rabbi Moses Teitelbaum, was chosen as the new Satmar Rebbe. He appointed one son, Rabbi Aaron Teitelb,ium, as Chief Rabbi of Kiryas Joel, and another son, Rabbi Zalman Teitelbaum as chief Rabbi of Williamsburg. Justice Barasch observed in Congregation Yetev Lev

DSatmar, Inc. v Kahan, supra at 3-4:

As a result of the latter appointment, a far-reaching feud erupted

between the siblings and their respective adherents. As the polarization of t;ie two sides escalated, Satmar Chasidim began to be identified as either Aaronis or Zalis depending upon to whom they pledged their allegiance.
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The polarization has so insidiously divided the two camps to the point tl iat they each dispute the other sides legitimacy to be identified as true Satmar Chasidim. Control of the Congregations synagogues, cemetery, assets, charitable, educational and religious institutions and even its corporate name has been hotly contested both in and out of the judicial
forum.

After the death of Rabbi Joel Teitelbaum, besides the factions surrounding Rabbis Aaron and Zalman Teitelbaum, another group of Satmar Chasidim followed Feige Teitelbaum, Rabbi Joel Teitelbaums Rebbetzin (a Rabbis wife). This created animosity, friction and personal clashes between defendant Nachman Brach and the new Rebbe, Rabbi Moses Teitelbaum. In this schism, Rabbi Moses Teitelbaums adherents effectik ely excommunicated Nachman Brach and banned him from entering the bui1din;:s at 533-541 Bedford Avenue, Brooklyn, New York. However, in 1990, with the property at 533-54 1 Bedford Avenue property convey1 :d to defendant Adar, a corporation owned by defendant Brach, 26 Adar N.B.
Corp., and its owner, Nachman Brach, installed metal gates over the entrance to the

synagogue [533-541 Bedford Avenue], apparently in an effort to keep out the members of Yetev Lev. (Congregation Yetev Lev D Satmar,Inc. v 26 Adar N.B. Corp, 2 19 AD2d 186, 189 [2d Dept 19961). This decision dismissed CYLs complaint. Subsequently,

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Brach and Adar were granted leave by Supreniz Court, Kings County to interpose counterclaims for use and occupancy of the 533-541 Bedford Avenue premises, and this was affirmed. (Congregation Yetev Lev D Satmar,Inc. v 26 Adar N.B. Corp, 258 AD2d 494 [2dl Dept 19991). Then, Supreme Court, Kings County granted partial summary judgment to CYL and dismissed the use and occupancy counterclaims. The Appellate Division, Second Department reversed this order and reinstated the Adar and Brach use and occupancy counterclaims. (Congregation Yetev Lev D Satmar, Inc. v 26 Adar N.B.
Corp, 300 AD2d 338 [2d Dept 20021).

I deanwhile, the Appellate Division, Second Department affirmed the

administrative order of Justice Michael Pesce, then Administrative Judge of Supreme Court, lLings County, to have all Satmar disputed matters, including CYL against Adar and Brach, before one justice, the Hon. Melvin Barasch. (Congregation Yetev Lev

D Satmar,Inc. v Kahana, 308 AD2d 446 [2d Dept 20031). In October 2004, with Justice
Baraschs retirement impending at the end of the year, then Adminsitrative Judge Neil Firetog assicyed Justice Baraschs inventory to me.

Procedural History
In my April 19,2005 decision and order in this matter [exhibit D of order to show
cause], I observed, at p. 8, that:
I ,ecause the instant case was in suspended animation for several
1 ears with its protracted motion practice, CYL correctly argues that

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to get this case trial ready CYL needs 2dditional time to track down
its witnesses, determine if their experts are still available, and be afforded time to conduct additional discovery . . . Therefore, the present note of issue and certificate of readiness must be vacated ixthwith and a new note of issue and certificate of readiness cannot be iiled until all future discovery is completed. Further, I ordered examinations before trial to be completed within 180 days after the date
of the notice of entry of this order, and the due date for a new note of issue and certificate

of readiness to be 2 10 days from the date of the notice of entry of this order. Two days
later, d fendants appealed my decision and order. My vacating the note of issue and c certific,:te of readiness was unanimously affirmed (Congregation Yetev Lev D 'Satmar,
Inc. v 26 Adar N.B. Corp, 32 AD3d 376 [2d Dept 20061).

The Brach defendants and their counsel failed to comply with my April 19,2005 decision and order, yet they still filed a note of issue and certificate of readiness on Januaq 26,2006. Then, CYL's counsel moved to vacate this. In my June 27,2006 decision and order [exhibit E of order to show cause and published at 12 Misc3d 1173
(A), sui lra] I vacated the January 26,2006 filing of a note of issue and certificate of

readiness by the Brach defendants. It was premature and discovery was not completed. I stated, ;it p. 4: CYL's counsel argues, in paragraph 3 of his affirmation in
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support of the motion, that since defenc!mts didn't comply with my ciscovery order, "your affiant . . . did nt ) t want to expend the scarce resources of his clients by conducting additional discovery until such time as the Appellate Division made a final decision on defendants' appeal." Further, plaintiffs request that my discovery order be extended until 90 days after the Appellate Divisim rules on the pending appeal. Meanwhile, plaintiffs request that I vacate the January 26,2006 note of issue and certificate or readiness because outstanding discovery was
not completed and that Adar and Brach's note of issue filing "is nothing

more than an attempt to circumvent this Court's April 19,2005 Decision and Order . . . rather than patiently a w A the Appellate Division's determination as to whether or not said April 19,2005 Decision and Order was properly made [parapaph 7 of affirmation in support of the motion]."

I ordered all outstanding discovery to be completed within 90 days after plaintiffs'

counse1 serves a copy of the notice of entry of this decision. Further, I ordered a new note
of issue and certificate of readiness to be filed within 120 days after service on defendants of a nolice of entry of this order.

Again, defendants, failed to comply with my discovery order. Subsequently,

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plaintiff CYL, pursuant to CPLR 3 126 (3), moved to strike defendants counterclaims and dismiss the action with prejudice. I issued the following short-form order [exhibit F of order to show cause], on November 17,2006: Plaintiffs OSC to strike defendants counterclaims is granted

to the extent that defendant will provide plaintiff with a list of all
witnesses, their addresses and a synopsis of their proposed testimony
by 12/1/06. Plaintiff will then provide defendant with a list of its

witnesses, their addresses, and proposed testimony by 1245/06. All

I3BTSs and discovery to be completed by 2/15/07. Note of issue to

be filed by 3/15/07. Failure of defendants to comply with this schedule will result in the automatic striking of defendants counterclaims pursuant to CPLR 6 3 126 (3) and dismissal with prejudice. Discovery demands include production of demanded documents. Thereafter, plaintiffs served defendants with a demand for discovery and inspect on. Defendants never responded to this. Defendants served deposition notices for
f three o plaintiffs proposed witnesses beyond the February 15,2007-deadline. Plaintiffs

then moved for a second time, by order to show cause, to strike defendants counterclaims, pursuant to CPLR 5 3 126 (3) and dismissal of the action with prejudice. On March 2,2007, after hearing oral argument by both sides, I issued a short-form order [exhibi G of order to show cause], which stated:

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After vigorous oral argument, plaintiffs OSC to dismiss c;efendants counterclaim

. . . pursuant to CPLR 3 126 (3) is denied.

However, defendants counsel on counterclaim has informed the Court and opposing counsel that no document or reports of Nachman Brach, Cipora Katz & Wolf Katz will be used at trial. By 3/9/07, defendants counsel must provide plaintiffs counsel with any documents
to be used by Albert Santagata at trial. Any documents not produced

by 3/9/07 by defendants counsel to plaintiffs counsel is precluded jiom use at trial, whether or not previously hrnished to plaintiffs counsel. In the presence of opposing counsel the Court visited the Building Dept. web site and printed 5 C. of 0s for 535 Bedford Avenue and one C. of 0. for 545 Bedford Avenue. These are the Cert. of Occupancy that were issued by the Dept. of Buildings for the premises. These six documents are attached and part of this order. All EBTs must be completed by 5/4/07. Defendants counsel must file note of issue by 5/25/07. Counsels for both plaintiffs and defendants exchanged letters proposing deposition dates [exhibits H, I, J, and K of order to show cause]. In his March 26,2007 letter

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[exhibit I of order to show cause] defendants counsel stated that he assumed that CYLs counsel didnt wish to depose defendant Nachman Brach again, and in his March 30, 2007 ler ter [exhibit K of order to show cause], defendants counsel refbsed to produce defmdant Nachman Brach for a deposition ahent a direction from the Court that he is require(to appear for a second deposition [the first deposition took place on March 17, 19991. The exchange of letters ultimately resulted in plaintiffs moving, for a third time, by order to show cause, to dismiss defendants counterclaims, pursuant to CPLR 0 3 126
(3), for defendants failure to comply with discovery orders and to dismiss the action with

prejudic e [exhibit C of order to show cause]. This order to show cause was heard by me on July 6,2007. That day, I issued the followi L short-form order [exhibit A of order to show cause]: g After oral argument, plaintiffs OSC to strike the counterclaim of defendants Brach, et. al. for failure of defendant Brach to be deposed,

I lursuant to CPLR 3 126 (3) is granted to the extent that: Nachman Brach
shall be deposed on Tuesday, 7/10/07, at 11 A.M. at the offices of rennenbaum and Berger, LLP, 26 Court St., Brooklyn, NY. If Nachman 3rach fails to appear for his deposition on July 10,2007 at 11 A.M. the counterclaims of defendants shall be deemed as dismissed. On July 9,2007, defendants counsel filed a notice of appeal of my July 6,2007 decision and order [exhibit B of order to shnw causc]. Defcndnnt Nachman Brach and his counsel,

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Noel Hauser, Esq., appeared for the deposition on July 10,2007. Plaintiffs counsel, in 7
2 1 of his reply affirmation, demonstrates that Mr. Hauser, at the deposition [exhibit M of

reply affirmation in support of order to show cause] made at least forty-four speaking objections and numerous comments that interfered with the questioning of Mr. Brach, in violation of 22 NYCRR

6 22 1.1 (b) of The Uniform Rules for the Conduct of

Depositions. The following exchange took place, at p. 33, lines 8 - 25, of the EBT:

MR. COHEN:

Mr. Hauser, I will respectfully ask you [to] limit

your comments to objections and that is;it. MR. HAUSER: Counsel, I went to law school just like you. A

Ycderal judge told me a long time ago tliat when you come to a deposition defending a witness you shouldnt sit there like a plant.

J have no intention of doing that.

MR. COHEN: I v R . HAUSER:
J,dR. COHEN: You were given bad advice. What is that? You were given bad advice. I am asking that

you limit your comments to objections and that is it. I am asking

1 hat

you not help your client.

After about an hour of questioning, Mr. Hauser asked for a break. Mr. Cohen consented without argument [exhibit N, EBT transcript, p. 45, lines 12-14]. However, when Mr. Cohen requested a lunch break, Mr. Hauser refused. The following colloquy

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took place, at p. 89, line 2 1 - p. 90, line 13, of the EBT: MR. COHEN: I am going to call for a break. It is now 20 minutcs to 2:OO. We are here for

MR. HAUSER:

almost two and a half hours, more than Ihat.

MR. COHEN:

I need about a half hour.

A half hour? We will see you another day. I

MR. HAUSER;

am not prepared to break this deposition for a half hour. MR. COHEN:

If you leave you leave at your own peril. I am

taking a lunch break. It is your decision. You know there is an Order out. I am asking you not to leave. (Time noted: 1:40 p.m.) According to plaintiffs counsel, in both 7 7 of his affirmation in support of the order to show cause and 7 16 of his reply affirmation in support of the order to show cause, Mr. Hauser and Mr. Brach left and did not return.

In 7 8 of his affirmation in support of th c order to show cause, plaintiffs counsel

states that:
d :fendants and Mr. Hausers arrogant disrespect for this court and f agrant disregard of the judicial process must be countenanced no

more. Clearly, Mr. Brach appeared but refixed to complete the deposition so that he may later claim that he complied with the letter

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of the order if not its intent and the Courts oral directive to complete the deposition. We hrther submit once again that the refbsal to produce Mr. Brach for a completed deposition is a stall tactic and part of a long pattern of defendants flagrant disregard of this Courts prior discovery orders and schedules which direct, inter alia, for the depositions of all witnesses, and are a part of defendants dilatory tactics to frustrate the progress of discovery and delay the prosecution of their counterclaims so as to forestall the foreclosure action that is
1 3resently stayed pending a final outcon le of this case. We respectfblly

submit that it is high time for the Court to punish defendants impunity. The Court agrees with plaintiffs counsel that both Mr. Brach and Mr. Hauser have demonstrated arrogant disrespect for this court and flagrant disregard of the judicial process [and it] must be countenanced no more. The instant order to show cause is the fourth time that plaintiffs moved, pursuant to lCPLR 8 3 126 (3), to strike defendants counterclaims and dismiss the action with prei dice. When I issued my July 6, 2007 decisioi t and order, it was clear that Mr. Brachs deposition was to be completed, not broken. Therefore, in the words of plaintiffs counsel, it is high time for the Court to punish defendants impunity.

Discussion CPLR 9 3 126, Penalties for rehsal to comply with order to disclose, states:

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If any party . . . refuses to obey an order for disclosure . . . the court may make such orders with regard to the failure or refusal as are just, among them: . . .
3. an order striking our pleading3 or parts thereof, or staying

further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment of default against the disobedient party.

1he use of CPLR 6 3 126 (3) for strikins pleadings and/or dismissing an action
is appropriate when the conduct of the offending party is willful in impeding the completion of discovery. Zletz v Wetanson (67 NY2d 71 1 [ 1986]), was an action for breach of an oral partnership agreement and conspiracy. The Court affirmed the dismissal of plaintiffs complaint against one of the defendants, when the plaintiff, at 713, engaged in a course of conduct designed to yield one-sided disclosure, culminating in his disregard of an order compelling him to answer . . . interrogatories, which were found to be relevant and appropriate. Further, the Court, at 723, held that [wlhere a party in these ciI cumstances disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint is within the broad discretion of the trial court.

In Kihl v Pfefler (94 NY2d 118, 123 [ 1999]), Chief Judge Kaye, writing for a
unanimous court, instructed that:

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IT the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity.
11tdeed, the Legislature, recognizing the need for courts to be able to

command compliance with their disclosure directives, has specifically provided that a "court may make such orders . . . as are just," including dismissal of an action (CPLR 3 126). Finally, we underscore that
c

jmpliance with a disclosure order reqiiires both a timely response and

one that evinces a good-faith effort to iidrlress the requests meaningfully.

1 '

s will be explained below, defendants' multiple failures to comply in

a timely manner with my discovery orders and their continuous and continued lack of good faith to attempt f o address plaintiffs discovery rcquests require me to grant plaintiffs' motion to strike defendants' ai iswer. [Emphasis added] In the instant action, the failure of the Brach defendants to comply with my discovery orders is similar to the failure to complete discovery in Kihl. The Kihl parties consented to a Nassau County Supreme Court discovery order at a March 18, 1996preliminary conference. Discovery was ordered to be completed within six months, and plaintiff was to respond to interrogatories of defendant Honda Motor Company within 30 days of eceipt of the interrogatories. Honda, latcr that day, served plaintiff with interrog,itories. AAer not receiving any responl se, on September 13, 1996, almost five

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months after the court-mandated deadline, Honda moved to strike plaintiffs complaint or compel a response. Plaintiff opposed Honda's motion and served responses on December 10, 1996. Honda continued to seek dismissal on the grounds that the responses were "woefdly inadequate and totally unresponsive in clear violation of the Court's Order."
(Kihl at 121). On March 3 1, 1997, the trial judge granted Honda's motion to dismiss for

failure to comply with the preliminary conference order, unless plaintiff adequately responded within 20 days after the second discovery order was served on plaintiffs counsel. An issue, not germane to the instant case, arose with respect to whether plaintiff was pro-Ierly served. The service issue delayed the Court's decision. Finally, the trial judge struck the complaint on February 9, 1998. The Second Department affirmec', with two dissents on the issue of service of the second order. This brought Kihl to the Court of Appeals, as of right, pursuant to CPLR 5601 (a). Putting aside the service ' w e , in which the Court of Appeals mlzd for Honda, Chief Judge Kaye, at 122, affirmec the striking of the complaint by instructing that, "when aparty fails to comply

with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within tjie Trial Judge's discretion to dismiss the complaint (Zletz v Wetanson, 67
N.Y.2d 7 11 , 713)." [Emphasis added]

Dzfendants in the instant action failed to comply with five of my discovery orders:
April 10,2005; June 27,2006; November 17,2006; March 2,2007; and, July 6,2007. On October 26,2007, in adjourning this order to show cause to November 16,2007, in a

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short-fc ~rm order [exhibit M of reply affirmation in support of order to show casue], I orderet defendants to file and serve opposition papers to plaintiffs OSC by 1 1/9/07. Instead of addressing whether or not I should dismiss the case, pursuant to CPLR 3 126 (3), Mr. Hauser obfuscated the issues in his cross-motion, by attempting to reopen and relitiga!e whether Mr. Brach should be deposed at all, and sought to limit the scope and duratio 1 of the EBT. In support of his cross-motion, Mr. Hauser submitted only his affirmation, which rehashed almost eighteen years of litigation. This was not only irreleva nt to the instant order to show cause, but his affirmation was replete with inadmi: sible hearsay and double hearsay. Mr. Hauser referred to deposing of Mr. Brach, in 5 27 of his affirmation in support of his cross-motion, as a mere ploy to further harass and del,iy the defendants and the trial of a simple counterclaim to establish a sum of money o be paid. Mr. Hauser overlooked that plaintiffs are entitled to depose Mr. Brach, i party, as a matter of law. (CPLR tj 3 101). Mr. Hauser failed to offer any legitim1 te excuse for Mr. Brachs five-time failure to comply with my discovery orders. Defendants blatant failure to comply with my five discovery orders can be inferred
as willfi 11 and contumacious. Willful is defined as voluntary and intentional (Blacks

Law Dictionary 1593 [7* ed 19991) and contumacious conduct is defined as a willful disobedience of a court order (Blacks Law Dictionary 292 [7* ed 19991). Defendants failure to present a legitimate excuse to the Court for its noncompliance with my discovery orders makes the striking of defendants counterclaims and dismissal of the

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instant action appropriate. (See Ziskin Law Firm, LLP v Bi-County Elec. Corp., 43 AD3d 1158, 1159 [2d Dept 20071; Estate of Ort v Ort, 41 AD3d 777 [2d Dept 20071; Russo v

Tolchin, 35 AD3d 43 1 [2d Dept 20061; Royal Caterers, LLC v Marine Midland, 8 AD3d
549 [2d Dept 20041). F-ecently,the Appellate Division, Second Department, instructed in McArthur v

New York City Housing Authority A D 3 d p ,

8, 20081, that:

2008 NY Slip Op 01 121 [2d Dept Feb.

The nature and degree of the penalty to be imposed pursuant to CPLR 3 126 lies within the sound discretion of the trial court (see

Kihl v Pheffer, 94 NY2d 118, 122-123; Rowel1 v Joyce, 10 AD3d

60 1 [2d Dept 20041; My Carpet, Inc. v Bruce Supply Corp., 8 AD3d 248 [2d Dept 20041). The striking of a pleading may be appropriate when there is a clear showing that the failure to comply with discovery demands is willful and contumacious (see Town of Southampton v

Salten, 186 AD2d 796 [2d Dept 19921). The willful and contumacious
c taracter of a partys conduct can be inferred from the partys repeated J
fi ilure to respond to demands and/or to romply with discovery orders
(J

.?eHorne v Swimqub, Inc., 36 AD3d 8.59 [2d Dept 20071; Sowerby v

Camarda, 20 AD3d 41 1 [2d Dept 20051; Bodine v Ladjvardi, 284

AD2d 351,352 [2d Dept 20011).

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(See Suazo-Alvarez v Nordlaw, LLC, -AD3d-,

2008 NY Slip Op 01529 [2d Dept

Feb. 19,20081; Negro v St. Charles Hosp. and Rehabilitation Center, 44 AD3d 727 [2d Dept 20071; Bomzer v Parke-Davis, 41 AD3d 522 [2d Dept 20071; Casey v Casey, 39 AD3d 579 [2d Dept 20071; Maignanc v Nahar, 37 AD3d 557 [2d Dept 20071). Further, in the instant action, defendants partial compliance with my July 6,2007 order is insufficient to show compliance with my discovery orders. Mr. Hauser, at the July 10.2007 EBT, repeatedly stopped Mr. Brach from answering questions, and ultimately busted the deposition before plaintiffs counsel finished asking questions. Partial compliance with discovery requests and court orders, with no reasonable excuse, has been held to be willful and contumacious conduct. (United States Fire Insurance

Company v J. R. Greene, Inc., 272 AD2d 148 [ 1st Dept 20001; La Valle v City of New York Department of Sanitation, 240 AD2d 639 [2d Dept 19971; Cauley v Long Island Railroad Company, 234 AD2d 252 [2d Dept 19961).
The striking of defendants counterclaims and dismissal of the instant action renders defendants cross-motion moot. Costs and sanctions for defeii dants frivolous conduct The willful and contumacious conduct exhibited by Noel Hauser, Esq., in his failure to abide with my five discovery orders appears to be frivolous. 22 NYCRR tj 130-1.1 (a) states:

5 130-1.1.

Costs; sanctions. (a) The court, in its discretion, may

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a,ward to any party or attorney in any civil action or proceeding before the court . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attcl n ley's fees, resulting from
f ,ivolous conduct as defined in this Part. In addition to or in lieu of

awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part,which shall
b : payable as provided in section 130-1.3 of this Subpart. :

Further. 22 NYCRR

0 130-1.1 (b) states that "sanctions may be imposed upon any

attornej, appearing in the action or upon a partnership, firm or corporation with which the attorney is associated."
22 NYCRR

6 130-1.1 (c) states that:

For purposes of this part, conduct is frivolous if:

( I ) it is completely without merit in law and cannot be supported

by a reasonable argument for an extension, modification or reversal of existing law;
( 3 ) it is undertaken primarily to delay or-prolong the resolution of

the litigation, or to harass or malicicliisly injure another; or

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(3) it asserts material factual statements that are false.

I! t is clear that Mr. Hauser blatantly violated my April 19,2005, June 27,2006,

November 17,2006, March 2,2007, and July 6,2007 discovery orders. On July 10, 2007, a; the EBT of Nachman Brach, Mr. H a u w condnued to fi-ustrate the process and prematurely terminated the EBT. There is no question that plaintiffs' counsel incurred expensc s in prosecuting protracted motion practice to attempt to move the case along. Discovery would have been completed years ago if Mr. Hauser had not engaged in dilatorj tactics. The Court, in Levy v Carol Managemeiit Corporation (260 AD2d 27,33 [ 1st Dept 1999]), stated that in determining if sanctions are appropriate the Court must look at the broad pattern of conduct by the offending attorneys or parties. Further, "22 NYCRR 130- 1.1 allows us to exercise our discretion to impose costs and sanctions on an errant are party . . .'I The Levy Court at 34, held that 'l[~]anctions retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolou s conduct not only by the particular parties, but also by the Bar at large." The Court, in Kernisan, MD. v Taylor, (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules ''is to prevent the waste ofjudicial resources and to

deter ve ratious litigation and dilatory or malicious litigation tactics (cf: Minister, Elders
& Deac.,ns of Refm. Prot. Church o City o New York v 198 Broadway, 76 NY2d 4 1 1; f f

see Steiner v Bonhamer, 146 Misc 2d lo)." [Emyhasis added]

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In its discretion, a court may award costs and financial sanctions against an attorne, or party resulting from frivolous conduct (see 22 NYCRR130-1.1 [a]).

(Flaherty v Stavropoulos, 199 AD2d 301,302 [2d Dept 1993]). It appears that Mr.
Hausers dilatory conduct must be deterred, as noted above, in Kernisan, M D . v Taylor.

(See Fenstermaker v Edgemont Union Free School District, -AD3d

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2008 NY Slip

Op 01343 [2d Dept Feb. 13,20081; Kamen v Diaz-Kamen, 40 AD3d 937 [2d Dept 20071;

Transaero, Inc. v Biri Associates, Corp.39 AD3d 738 [2d Dept 20071; Ofman v Campos,
12 AD: d 581 [2d Dept 20041).

In Navin v Mosquera (30 AD3d 883 [3d Dept 20061, the Court instructed that
when considering if specific conduct is sanctionable as frivolous, courts are required to examin17 whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent (22 NYCRR 130-1.1 [c]). In Sakow ex
rel. Columbia Bagel, Inc. v Columbia Bagel, Inc. (6 Misc 3d 939,943 [Sup Ct, New York

County 2004]), the Court held that [iln assessing whether to award sanctions, the Court must consider whether the attorney adhered to the standards of a reasonable attorney

(Principe v Assay Partners (154 Misc 2d 702 [Sup Ct, NY County 1992]). This Court
will examine Mr. Hausers conduct at a hearing, pursuant to 22 NYCRR

0 130-1.1, to:

determine if Mr. Hauser adhered to the standards of a reasonable attorney or engaged in frivolous conduct; and, to allow Mr. Hauser a reasonable opportunity to be heard. (See In

re Mancuso, AD3d-,

2008 NY Slip Op 01350 [2d Dept Feb. 13,20081; Mascia v

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Maresco, 39 AD3d 504 [2d Dept 20071; Yan Klein, 35 AD3d 729 [2d Dept 20061; Greene v Dora1 Conference Center Associates, 18 AD3d 429 [2d Dept 20051; Frankel v Hirsch, 15 AD3d 438 [2d Dept 20051; Kucker v Kaminsky & Rich, 7 AD3d 39 [2d Dept
20041; Tyree Bros. Environmental Services, Inc. v Ferguson Propeller Inc., 247 AD2d 376 [26 Dept 19981).

Conclusion
Accordingly, it is ORDERED that the order to show cause of plaintiffs Congregation Yetev Lev D'Satrnar, Inc., Ludovick Weisz, and Jacob Sc.lionfeld, pursuant to CPLR 0 3 126 (3), to: strike the remaining counterclaims of defendants Nachman Brach, Inc. W a 26 Adar
N.B. Corp. and Nachman Brach; and, dismiss the instant action with prejudice due to the

failure of defendants Nachman Brach, Inc. W a 26 Adar N.B. Corp. and Nachman Brach to comply with my orders of November 17,2006, March 2,2007, and July 6,2007, is granted; and it is further; ORDERED that the cross-motion of defendants Nachman Brach, Inc. W a 26 Adar N.B. Corp. and Nachman Brach, pursuant to CPLR 6 3 103 (a), for a protective order, is denied as moot; and it is hrther ORDERED that it appearing that Noel I-lauser,Esq. engaged in "frivolous conduct." as defined in the Rules of the Chief Administrator, 22 NYCRR 130-1 (c) and

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that pur.suant to the Rules of the Chief Administrator, 22 NYCRR 130.1.1 (d), "[aln award of costs or the imposition of sanctions may be made upon motion

. . . or upon the

court's own initiative, after a reasonable oppormnity to be heard," this Court will conduct a hearing affording Mr. Hauser ''a reasonable opportunity to be heard," before me in Part
27, on Friday, May 16,2008, at 2:30 P.M., in Room 479, 360 Adams Street, Brooklyn,

NY 1l:Ol; and it is fbrther

ORDERED, that Ronald D. Bratt, Esq., my Principal Law Clerk, is directed to

serve this order by first-class mail, upon Noel W. Hauser, Esq., 270 Madison Avenue, New YIr k 10016, and Tennenbaum & Berger, LLP, 26 Court Street, Brooklyn, New York 11242. This constitutes the Decision and Order of the Court.

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