The only remaining issues in this 18-year-old case are counterclaims by defendants Nachman Brach, Inc. f/k/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 D'Satmar, 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 § 3126 (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 attorney's fees for four motions to strike that were prosecuted due to [*2]defendants' improper conduct ($2,500.00 per motion). The Brach defendants cross-move, pursuant to CPLR § 3103 (a), for a protective order to limit and regulate the deposition of Nachman Brach.

The Brach defendants' and their counsel's 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.

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

between the siblings and their respective adherents. As the polarization of

the two sides escalated, Satmar Chasidim began to be identified as either

Aaronis or Zalis depending upon to whom they pledged their allegiance. The polarization has so insidiously divided the two camps to the point

that they each dispute the other side's 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.

However, in 1990, with the property at 533-541 Bedford Avenue property conveyed to defendant Adar, a corporation owned by defendant Brach, "26 Adar N.B. Corp., and its owner, [*3]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, 219 AD2d 186, 189 [2d Dept 1996]). This decision dismissed CYL's complaint. Subsequently, Brach and Adar were granted leave by Supreme 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 [2d Dept 1999]). 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 2002]).

Meanwhile, the Appellate Division, Second Department affirmed the administrative order of Justice Michael Pesce, then Administrative Judge of Supreme Court, Kings 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 2003]). In October 2004, with Justice Barasch's retirement impending at the end of the year, then Adminsitrative Judge Neil Firetog assigned Justice Barasch's inventory to me.

In my April 19, 2005 decision and order in this matter [exhibit D of order to show cause], I observed, at p. 8, that:

because the instant case was in "suspended animation" for several

years with its protracted motion practice, CYL correctly argues that

to get this case trial ready CYL needs additional 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

forthwith and a new note of issue and certificate of readiness cannot be

filed 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 210 days from the date of the notice of entry of this order. Two days later, defendants appealed my decision and order. My vacating the note of issue and certificate of readiness was unanimously affirmed (Congregation Yetev Lev D'Satmar, Inc. v 26 Adar N.B. Corp, 32 AD3d 376 [2d Dept 2006]).

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 January 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 Misc 3d 1173 (A), supra] 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, at p. 4:

CYL's counsel argues, in paragraph 3 of his affirmation in

support of the motion, that since defendants didn't comply with my [*4]

discovery order, "your affiant . . . did not 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 Division 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 await the Appellate Division's

determination as to whether or not said April 19, 2005 Decision and Order

was properly made [paragraph 7 of affirmation in support of the motion]."

I ordered all outstanding discovery to be completed within 90 days after plaintiffs' counsel 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 notice of entry of this order.

Again, defendants, failed to comply with my discovery order. Subsequently, plaintiff CYL, pursuant to CPLR § 3126 (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:

Plaintiff's 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 12/15/06. All

EBTS's 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 § 3126 (3) and dismissal with prejudice.

Discovery demands include production of demanded documents.

Thereafter, plaintiffs served defendants with a demand for discovery and inspection. Defendants never responded to this. Defendants served deposition notices for three of 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 § 3126 (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 [exhibit G of order to show cause], which stated:

After vigorous oral argument, plaintiff's OSC to dismiss

defendants' counterclaim . . . pursuant to CPLR 3126 (3) is denied.

However, defendants' counsel on counterclaim has informed the [*5]

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 plaintiff's counsel with any documents

to be used by Albert Santagata at trial. Any documents not produced

by 3/9/07 by defendants' counsel to plaintiff's counsel is precluded

from use at trial, whether or not previously furnished to plaintiff's

counsel.

In the presence of opposing counsel the Court visited the

Building Dept. web site and printed 5 C. of O's for 535 Bedford

Avenue and one C. of O. 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 EBT's 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 [exhibit I of order to show cause] defendants' counsel stated that he assumed that CYL's counsel didn't wish to depose defendant Nachman Brach again, and in his March 30, 2007 letter [exhibit K of order to show cause], defendants' counsel refused to produce defendant Nachman Brach for a deposition "absent a direction from the Court that he is required to appear for a second deposition [the first deposition took place on March 17, 1999]." 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 § 3126 (3), for defendants' failure to comply with discovery orders and to dismiss the action with prejudice [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 following short-form order [exhibit A of order to show cause]:

After oral argument, plaintiff's OSC to strike the counterclaim

of defendants Brach, et. al. for failure of defendant Brach to be deposed,

pursuant to CPLR 3126 (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

Tennenbaum and Berger, LLP, 26 Court St., Brooklyn, NY. If Nachman

Brach 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 show cause]. Defendant Nachman Brach and his counsel, Noel Hauser, Esq., appeared for the deposition on July 10, 2007. Plaintiffs' counsel, in ¶ 21 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 § 221.1 (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. [*6]

MR. HAUSER:Counsel, I went to law school just like you. A

federal judge told me a long time ago that when you come to a

deposition defending a witness you shouldn't sit there like a plant.

I have no intention of doing that.

MR. COHEN:You were given bad advice.

MR. HAUSER:What is that?

MR. COHEN:You were given bad advice. I am asking that

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

that 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 took place, at p. 89, line 21 - p. 90, line 13, of the EBT:

MR. COHEN:I am going to call for a break.

MR. HAUSER:It is now 20 minutes to 2:00. We are here for

almost two and a half hours, more than that.

MR. COHEN:I need about a half hour.

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

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 plaintiff's counsel, in both ¶ 7 of his affirmation in support of the order to show cause and ¶ 16 of his reply affirmation in support of the order to show cause, Mr. Hauser and Mr. Brach left and did not return.

In ¶ 8 of his affirmation in support of the order to show cause, plaintiffs' counsel states that:

defendants' and Mr. Hauser's arrogant disrespect for this court and

flagrant disregard of the judicial process must be countenanced no

more. Clearly, Mr. Brach appeared but refused to complete the

deposition so that he may later claim that he complied with the letter

of the order if not its intent and the Court's oral directive to complete

the deposition. We further submit once again that the refusal to produce

Mr. Brach for a completed deposition is a stall tactic and part of a

long pattern of defendants' flagrant disregard of this Court's 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

presently stayed pending a final outcome of this case. We respectfully

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 [*7]countenanced no more." The instant order to show cause is the fourth time that plaintiffs moved, pursuant to CPLR § 3126 (3), to strike defendants' counterclaims and dismiss the action with prejudice. When I issued my July 6, 2007 decision and order, it was clear that Mr. Brach's deposition was to be completed, not broken. Therefore, in the words of plaintiff's counsel, "it is high time for the Court to punish defendants' impunity."

CPLR § 3126, "Penalties for refusal to comply with order to disclose," states:

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 pleadings 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.

The use of CPLR § 3126 (3) for striking 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 711 [1986]), was an action for breach of an oral partnership agreement and conspiracy. The Court affirmed the dismissal of plaintiff's 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 "[w]here a party in these circumstances 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 Pfeffer (94 NY2d 118, 123 [1999]), Chief Judge Kaye, writing for a unanimous court, instructed that:

If the credibility of court orders and the integrity of our judicial system

are to be maintained, a litigant cannot ignore court orders with impunity.

Indeed, 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 3126). Finally, we underscore thatcompliance with a disclosure order requires both a timely response and

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

As 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 to address plaintiff's discovery

requests require me to grant plaintiffs' motion to strike defendants'

answer. [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, 1996-preliminary 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 receipt of the [*8]interrogatories. Honda, later that day, served plaintiff with interrogatories. After not receiving any response, on September 13, 1996, almost five months after the court-mandated deadline, Honda moved to strike plaintiff's 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 "woefully inadequate and totally unresponsive in clear violation of the Court's Order." (Kihl at 121). On March 31, 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 plaintiff's counsel. An issue, not germane to the instant case, arose with respect to whether plaintiff was properly served. The service issue delayed the Court's decision.

Finally, the trial judge struck the complaint on February 9, 1998. The Second Department affirmed, 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 issue, in which the Court of Appeals ruled for Honda, Chief Judge Kaye, at 122, affirmed the striking of the complaint by instructing that, "when a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion to dismiss the complaint (Zletz v Wetanson, 67 NY2d 711, 713)." [Emphasis added]

Defendants in the instant action failed to comply with five of my discovery orders:

April 19, 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 short-form order [exhibit M of reply affirmation in support of order to show casue], I ordered "defendants to file and serve opposition papers to plaintiffs' OSC by 11/9/07." Instead of addressing whether or not I should dismiss the case, pursuant to CPLR § 3126 (3), Mr. Hauser obfuscated the issues in his cross-motion, by attempting to reopen and relitigate whether Mr. Brach should be deposed at all, and sought to limit the scope and duration 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 irrelevant to the instant order to show cause, but his affirmation was replete with inadmissible hearsay and double hearsay. Mr. Hauser referred to deposing of Mr. Brach, in ¶ 27 of his affirmation in support of his cross-motion, as "a mere ploy to further harass and delay the defendants and the trial of a simple counterclaim to establish a sum of money to be paid." Mr. Hauser overlooked that plaintiffs are entitled to depose Mr. Brach, a party, as a matter of law. (CPLR § 3101). Mr. Hauser failed to offer any legitimate excuse for Mr. Brach's five-time failure to comply with my discovery orders.

Defendants' blatant failure to comply with my five discovery orders can be inferred as willful and contumacious. "Willful" is defined as "voluntary and intentional" (Black's Law Dictionary 1593 [7th ed 1999]) and "contumacious conduct" is defined as "a willful disobedience of a court order" (Black's Law Dictionary 292 [7th ed 1999]). 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 instant action appropriate. (See Ziskin Law Firm, LLP v Bi-County Elec. Corp., 43 AD3d 1158, 1159 [2d Dept 2007]; Estate of Ort v Ort, 41 AD3d 777 [2d Dept 2007]; Russo v Tolchin, 35 AD3d 431 [2d Dept 2006]; Royal Caterers, LLC v Marine Midland, 8 AD3d 549 [2d Dept 2004]).

Recently, the Appellate Division, Second Department, instructed in McArthur v

New York City Housing Authority (___AD3d___, 2008 NY Slip Op 01121 [2d Dept Feb. 8, [*9]2008], that:

The nature and degree of the penalty to be imposed pursuant

to CPLR 3126 lies within the sound discretion of the trial court (see

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

601 [2d Dept 2004]; My Carpet, Inc. v Bruce Supply Corp., 8 AD3d

248 [2d Dept 2004]). 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 1992]). The willful and contumacious

character of a party's conduct can be inferred from the party's repeated

failure to respond to demands and/or to comply with discovery orders

(see Horne v Swimquip, Inc., 36 AD3d 859 [2d Dept 2007]; Sowerby v

Camarda, 20 AD3d 411 [2d Dept 2005]; Bodine v Ladjvardi, 284

AD2d 351, 352 [2d Dept 2001]).

(See Suazo-Alvarez v Nordlaw, LLC, ___AD3d___, 2008 NY Slip Op 01529 [2d Dept Feb.19, 2008]; Negro v St. Charles Hosp. and Rehabilitation Center, 44 AD3d 727 [2d Dept 2007]; Bomzer v Parke-Davis, 41 AD3d 522 [2d Dept 2007]; Casey v Casey, 39 AD3d 579 [2d Dept 2007]; Maignanc v Nahar, 37 AD3d 557 [2d Dept 2007]).

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 2000]; La Valle v City of New York Department of Sanitation, 240 AD2d 639 [2d Dept 1997]; Cauley v Long Island Railroad Company, 234 AD2d 252 [2d Dept 1996]).

The striking of defendants' counterclaims and dismissal of the instant action

renders defendants' cross-motion moot.

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 § 130-1.1 (a) states:

§ 130-1.1. Costs; sanctions. (a) The court, in its discretion, may

award 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 attorney's fees, resulting from

frivolous 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

be payable as provided in section 130-1.3 of this Subpart.

Further, 22 NYCRR § 130-1.1 (b) states that "sanctions may be imposed upon any attorney [*10]appearing in the action or upon a partnership, firm or corporation with which the attorney is associated."

22 NYCRR § 130-1.1 (c) states that:

For purposes of this part, conduct is frivolous if:

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

by a reasonable argument for an extension, modification or

reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of

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

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

It 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, at the EBT of Nachman Brach, Mr. Hauser continued to frustrate the process and prematurely terminated the EBT. There is no question that plaintiffs' counsel incurred expenses 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 dilatory tactics.

The Court, in Levy v Carol Management 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 party . . ." The Levy Court at 34, held that "[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large."

The Court, in Kernisan, M.D. v Taylor, (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules "is toprevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics (cf. Minister, Elders & Deacons of Refm. Prot. Church of City of New York v 198 Broadway, 76 NY2d 411; see Steiner v Bonhamer, 146 Misc 2d 10)." [Emphasis added]

"In its discretion, a court may award costs and financial sanctions against an attorney 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. Hauser's dilatory conduct must be deterred, as noted above, in Kernisan, M.D. v Taylor.

(See Fenstermaker v Edgemont Union Free School District, ___AD3d___, 2008 NY Slip Op 01343 [2d Dept Feb.13, 2008]; Kamen v Diaz-Kamen, 40 AD3d 937 [2d Dept 2007]; Transaero, Inc. v Biri Associates, Corp.39 AD3d 738 [2d Dept 2007]; Ofman v Campos, 12 AD3d 581 [2d Dept 2004]).

In Navin v Mosquera (30 AD3d 883 [3d Dept 2006], the Court instructed that when considering if specific conduct is sanctionable as frivolous, "courts are required to [*11]

examine 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 "[i]n 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. Hauser's conduct at a hearing, pursuant to 22 NYCRR § 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, 2008]; Mascia v Maresco, 39 AD3d 504 [2d Dept 2007]; Yan v Klein, 35 AD3d 729 [2d Dept 2006]; Greene v Doral Conference Center Associates, 18 AD3d 429 [2d Dept 2005]; Frankel v Hirsch, 15 AD3d 438 [2d Dept 2005]; Kucker v Kaminsky & Rich, 7 AD3d 39 [2d Dept 2004]; Tyree Bros. Environmental Services, Inc. v Ferguson Propeller Inc., 247 AD2d 376 [2d Dept 1998]).

Accordingly, it is

ORDERED that the order to show cause of plaintiffs Congregation Yetev Lev D'Satmar, Inc., Ludovick Weisz, and Jacob Schonfeld, pursuant to CPLR § 3126 (3),

to: strike the remaining counterclaims of defendants Nachman Brach, Inc. f/k/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. f/k/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. f/k/a 26 Adar N.B. Corp. and Nachman Brach, pursuant to CPLR § 3103 (a), for a protective order, is denied as moot; and it is further

ORDERED that it appearing that Noel Hauser, Esq. engaged in "frivolous conduct," as defined in the Rules of the Chief Administrator, 22 NYCRR 130-1 (c) and that pursuant to the Rules of the Chief Administrator, 22 NYCRR 130.1.1 (d), "[a]n award of costs or the imposition of sanctions may be made upon motion . . . or upon the court's own initiative, after a reasonable opportunity 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 11201; and it is further

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 York 10016, and Tennenbaum & Berger, LLP, 26 Court Street, Brooklyn, New York 11242.

This constitutes the Decision and Order of the Court.

ENTER

___________________________ [*12]

Hon. Arthur M. Schack

J. S. C.