of the State of New York for the 2nd, 11th & 13th judicial Districts

MICHAEL L. PESCE, P.J.

THOMAS P. ALIOTTA

MARTIN M. SOLOMON, JJ.

DECISION & ORDER ON MOTION

Appeal in the above-captioned matter from the Civil Court of the City of New York, Queens County, entered March 7, 2013, which appeal was determined by decision and order of this court dated September 28, 2015. In the decision and order dated September 28, 2015, counsel for the respective parties were directed to show cause why an order should or should not be made and entered imposing such sanctions upon counsel for appellant, as the court may deem appropriate pursuant to the Rules of the Chief Administrator (22 NYCRR) § 130-1.1.

Upon the order to show cause and the papers filed in response thereto, it is

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, The Rybak Firm, PLLC, counsel for appellant, shall pay a sanction in the sum of $1000 to the Lawyers' Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); 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 by regular mail; and it is further,

ORDERED that within 10 days after payment of the sanction, counsel shall file proof of payment of its sanction with the Clerk of this Court.

We conclude that sanctions are warranted for the conduct of The Rybak Firm, PLLC, counsel for appellant for frivolous conduct. As relevant here, frivolous conduct includes the assertion of "material factual statements that are false" in the brief filed by counsel on behalf of appellant (22 NYCRR 130-1.1 [c] [3]; see Matter of Kover, 134 AD3d 64, 74 [2015]; Gihon, LLC v 501 Second St., LLC, 103 AD3d 840 [2013]; Korbel v Zoning Bd. of Appeals of Town of Horicon, 28 AD3d 888, 889-890 [2006]). In the brief, counsel for plaintiff asserted that:

"To the extent Defendant proffered a purported police report, within Exhibit F' to its motion, same was inadmissible. In particular, the document was not certified. Moreover, Defendant did not proffer an affidavit to set forth a foundation for its admissibility, authenticity or accuracy."

However, a review of the appellate record reveals that the affirmation of defendant's counsel stated that "A copy of the certified Police Accident Report is annexed hereto as Exhibit F." In addition, each page of the police report annexed to defendant's motion at Exhibit "F" bears a stamp which states "This is to certify that this document is a true and complete copy of a record on file in the New York State Department of Motor Vehicles, Albany, New York" and the signature of the Commissioner of Motor Vehicles is stamped onto each page as well. Although there were multiple indications that a certified copy of the Police Accident Report was contained in the record, appellant's counsel nevertheless made a factual representation in appellant's brief which was diametrically opposed to the affirmative factual declaration in the record by respondent's counsel. As the stamp affixed to the copy of the Police Accident Report establishes that a certified copy was indeed annexed to defendant's papers, the statement by appellant's counsel was unequivocally a materially false statement.

ENTER:

Paul Kenny

Chief Clerk