Appellate Division: Second Judicial Department

M104799

E/sl

WILLIAM F. MASTRO, J.P.

RANDALL T. ENG

ARIEL E. BELEN

LEONARD B. AUSTIN, JJ.

2009-02300 Uri Tornheim, appellant, v Blue & White Food Products Corp., respondent. (Index No. 04-1962)

DECISION & ORDER ON MOTION

Appeal by Uri Tornheim from an order of the Supreme Court, Rockland County (Nelson, J.), entered January 30, 2009, which was determined by a decision and order of this court dated May 4, 2010. In the decision and order dated May 4, 2010, counsel for the respective parties were directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against the plaintiff and/or his counsel pursuant to 22 NYCRR 130-1.1(c) as this court may deem appropriate.

Now, upon the court's own motion and upon the papers filed in response to the decision and order dated May 4, 2010, it is

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Ernest H. Hammer, counsel for the plaintiff, is directed to pay a sanction in the sum of $250 to the Lawyers' Fund for Client Protection of the State of New York (see 22 NYCRR 130-1.1[b]; 130-1.3); and it is further,

ORDERED that Uri Tornheim, is directed to pay a sanction in the sum of $250 and shall deposit the sum of $250 with the Clerk of this court for transmittal to the Commissioner of Taxation and Finance (see 22 NYCRR 130-1.3), within 20 days after service of a copy of this decision and order on motion upon his counsel; and it is further,

ORDERED that the Clerk of the Supreme Court, Rockland County, shall enter judgment accordingly (see 22 NYCRR 130-1.2); and it is further,

ORDERED that the Clerk of this Court, or his designee, shall serve a copy of this decision and order on motion upon counsel for the parties by regular mail.

In affirming the order on appeal we noted that:

"Here, in an order entered September 12, 2008, the Supreme Court directed the defendant to produce any documents relating to certain equipment that it leased. In response, the defendant produced invoices, letters, check registers, and canceled checks relating to leased equipment. The plaintiff then moved, as he had done several times previously throughout this litigation, to strike the answer, this time on the ground that the production of these documents did not comply with the order entered September 12, 2008.

"Contrary to the plaintiff's contention, the documents clearly complied with the order entered September 12, 2008, and the plaintiff, on his motion to strike the answer, failed to articulate why he believed that these documents were nonresponsive. Accordingly, the Supreme Court correctly determined that the defendant's disclosure was more than adequate.' There was no basis for the striking of the answer, and the Supreme Court providently exercised its discretion in denying the plaintiff's motion for that relief.

"The plaintiff's remaining contentions are raised for the first time on appeal and, accordingly, are not properly before this Court (see generally Schehr v McEvoy, 43 AD3d 899, 900)."

The motion that is the subject of this appeal was one of many motions to strike the answer that the plaintiff made throughout this litigation, and each of these motions lacked merit (see Tornheim v Blue & White Food Products Corp., 73 AD3d 746; Tornheim v Blue & White Food Products Corp., 73 AD3d 747; Tornheim v Blue & White Food Products Corp., 73 AD3d 750; see generally Weinstock v Weinstock, 253 AD2d 873, 874, cert denied 526 US 1088). Accordingly, the conduct of the plaintiff and his attorney in pursuing the instant appeal was completely without merit in law or fact and unsupported by a reasonable argument for an extension, modification, or reversal of existing law, and was undertaken primarily to delay or prolong the resolution of litigation and to harass or maliciously injure another (see 22 NYCRR 130-1.1[c]; Palmieri v Thomas, 29 AD3d 658, 659).

Accordingly, sanctions in the amounts set forth above are warranted.

MASTRO, J.P., ENG, BELEN and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court