Recitation as required by CPLR 2219(a), of the papers considered in the review of the sua spone motion as to sanctions and referral to the Disciplinary Committee.

The Court ordered Petitioner's former counsel, Scott Gross, Esq., to show cause why he should not be sanctioned and/or referred to the Disciplinary Committee for actions he engaged in on October 23, 2024. (October 23, 2024 Decision/Order, NYSCEF Doc. 9.) Mr. Gross has filed a written brief (NYSCEF Doc. 26) and the Court heard from Mr. Gross on December 9, 2024. Having considered Mr. Gross' arguments, the Court finds that the conduct exhibited by Mr. Gross requires the impositions of sanctions and a referral to the Disciplinary Committee for the reasons stated below.

I. Findings of Fact

The Court makes the following findings of fact, which were not contested by Mr. Gross [*2]either in his written opposition or at argument:^[FN1]

The Respondent was evicted in this nonpayment proceeding on or about October 21, 2024, and subsequently filed an Order to Show Cause that same day seeking to be restored to possession of the subject premises. (Mot. Seq. 1, NYSCEF 8.) The Court scheduled argument for Respondent's post-eviction Order to Show Cause on October 23, 2024, at 9:30 AM. Petitioner, who was then represented by Mr. Gross, had not appeared to argue the motion by 10:30 AM, and the Respondent was therefore entitled to a decision on default under the terms of the Part Rules.

Just as the Court was calling the Respondent to the bench to decide the motion on default, the Court spied Mr. Gross crossing by the doorway to the courtroom. In the interest of equity, the Court instructed its court officer to tell Mr. Gross that the Court would hold its default call but to please come and address the post-eviction Order to Show Cause as soon as possible. The court officer went into the hallway and spoke to Mr. Gross as requested by the Court. In response to the Court's message, Mr. Gross told the officer: "You can tell the judge to go fuck himself." He then left without addressing the case before the court. There were litigants in the courtroom and in the hallway who presumably heard what Mr. Gross said.

The officer, looking quite embarrassed, returned to the courtroom. The Court suspected it heard what Mr. Gross had said and inquired what the officer had heard. The officer relayed what Mr. Gross had instructed the undersigned to do to himself. Mr. Gross returned some forty minutes later to argue the motion.

II. Mr. Gross' Submission

Mr. Gross does not provide a legal argument for why he should not be sanctioned or referred to the Disciplinary Committee. Both in his submitted papers and in oral argument at bar, Mr. Gross reiterated what he stated at oral argument on October 23, 2024: that he is currently going through some family turmoil, he was harried because he missed his train, and that he regrets what was said. In his written submission, Mr. Gross indicates that his son is having issues that are affecting Mr. Gross and the rest of his family. Mr. Gross chooses not to recount details of these issues in a public filing.^[FN2] The Court agrees with Mr. Gross that he should not be required "to recount private family issues so they can be made public on NYSCEF." [*3](NYSCEF Doc. 26 at ¶ 6.). The Court also notes, however, that it can only make decisions based on the contents of the submissions presented to it.

At oral argument, Mr. Gross once again apologized for what he said, indicated that he was taking responsibility for his actions, and asked that the Court "give [him] a pass."

III. Discussion

In 2017 a Special Commission was appointed by then-Chief Judge Janet DiFiore to investigate, in part, what could be done to improve how New York City Housing Court is perceived, hoping to assist Housing Court in operating as a court of law "with the dignity and decorum that such status entails." Special Commission on the Future of New York City Housing Court Report to the Chief Judge, Report to the Chief Judge at 1.^[FN3] This commission issued a report in January 2018 finding "a surprising lack of civility in some Housing Court facilities" including "[a] lack of decorum by attorneys and others—in everything from manner of addressing or approaching the court to appropriate attire" Id. at 28.

In the intervening period, a Civility Committee has been formed to address issues related to professionalism and decorum in the courthouse. This committee includes members of both the landlords' and tenants' bars and is joined by the Administrative Judge of Kings County Housing Court. While this committee has made strides toward a more professional environment at Kings County Housing Court, the work is not done. The Court is mindful that the important work of this committee is undercut if Housing Court Judges are unwilling to enforce even minimal standards of decorum in the courthouse.

It is against this backdrop that the Court must decide what to do about Mr. Gross' conduct.

A. Mr. Gross' Behavior is Sanctionable

Sanctions may be imposed sua sponte, so long as the party to be sanctioned is afforded a reasonable opportunity to be heard. 22 NYCRR 130-1.1[a], [d]; Griffin v Panzarin, 305 AD2d 601, 603 [2nd Dep't 2003] (citing Cangro v. Cangro, 272 AD2d 286, 287 [2nd Dep't 2000]; Morrison v. Morrison, 246 AD2d 634, 667 N.Y.S.2d 312 [2nd Dep't 1998]; George v. Wyckoff Hgts. Hosp., 222 AD2d 552, 635 N.Y.S.2d 82 [2nd Dep't 1995]; Walker v. Weinstock, 213 AD2d 631, 624 N.Y.S.2d 193 [2nd Dep't 1995].) Mr. Gross was provided such an opportunity to be heard in the October 23, 2024, Decision/Order. As such, sanctions are available as a remedy for Gross' actions.

The imposition of sanctions is entrusted to the sound discretion of the court. Parks v. Leahey & Johnson, 180 AD2d 479 [1st Dep't 1992]. 22 NYCRR 130-1.1 (c) sets forth three categories of "frivolous conduct" that can give rise to court-ordered sanctions: "(1) [conduct which] is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law"; "(2) [conduct which] is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another"; or "(3) [conduct which] asserts material factual statements that are false." DeRosa v Chase Manhattan Mtge. Corp., 15 AD3d 249, 250 [1st Dept 2005]. "Conduct which violates any of the three subdivisions [of section 130-1.1 (c)] is grounds for the imposition of sanctions." Id. Thus, sanctions and costs have been imposed for baseless ad hominem attacks against the court. [*4]Santaliz v. OR FM Associates, 75 Misc 3d 1201[A] at *4 [Civ Ct., Kings County 2022] [Stoller, J.], modified on appeal 83 Misc 3d 129[A] (citing Matter of Kover, 134 AD3d 64, 74 [1st Dept. 2015], Mokay v. Mokay, 111 AD3d 1175, 1178 [3rd Dep't 2013], Nachbaur v. American Tr. Ins. Co., 300 AD2d 74, 75-76 [1st Dep't 2002], William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 32 [1st Dept. 1992], Rector v. Video Editions, Inc., 4 Misc 3d 43, 44-45 [AT 1st Dept. 2004], Kyle v. Lebovits, 17 Misc 3d 1124(A) [S. Ct. NY Co. 2007], appeal dismissed, 58 AD3d 521 [1st Dep't 2009], appeal dismissed, 13 NY3d 765 [2009], cert denied, 559 U.S. 938 [2010].) "An attorney who demonstrates a lack of civility, good manners and common courtesy taint[s] the image of the legal profession and, consequently, the legal system, which was created and designed to resolve difference and disputes in a civil manner" warranting sanctions. Friedman v. Fayenson, 41 Misc 3d 1236[A] [Sup. Ct., NY County 2013], aff'd 138 AD3d 534.

Mr. Gross' instruction to the court officer that the undersigned should "go fuck himself" was an insult both baseless and ad hominem and his actions are therefore sanctionable. As detailed in Santaliz v. OR FM Associate (supra), attorneys have been sanctioned for saying that a court was "ready to run completely roughshod over [a litigant's] rights" (Kover, supra, at 91) and that a court committed acts of misconduct without proof or evidence (Id. at 93). Mr. Gross' comments are akin, if not more offensive than the comments discussed in Santaliz. That Mr. Gross chose to involve the court's officer in the baseless attack and did so in the hallway directly in front of the courtroom while pro se litigants entered only serves to underscore the deleterious nature of Mr. Gross' conduct.

Mr. Gross' actions undermined the Court's dignity and authority to hear disputes, jeopardized the Court's ability to maintain decorum in the courtroom, and threatened the Court's standing with its own staff. No court should be addressed in such a manner, but the Court cannot fathom why Mr. Gross would level such an attack at the undersigned completely unprompted, let alone when the Court was extending him the courtesy of not defaulting his client.^[FN4] Simply put, Mr. Gross' comments acted as an impediment to the fair administration of justice.

This is why the Court cannot grant Mr. Gross' request for "a pass." To do so would implicitly condone the behavior he exhibited. It would also create conditions under which behavior such as he exhibited could be deemed "understandable given the circumstances." And there can be no circumstances where such behavior, especially when undertaken by an officer of the court, can be condoned. Such behavior must be prohibited in any form because it inhibits the Court from fairly and justly resolving disputes. The relationship between decorum and the fair resolution of disputes is put plainly by the Chief Administrative Judge's Rules: "The courtroom, as the place where justice is dispensed, must at all times satisfy the appearance as well as the reality of fairness and equal treatment. Dignity, order and decorum are indispensable to the proper administration of justice. Disruptive conduct by any person while the court is in session is forbidden." NY Ct. R. § 700.2 (emphasis added).

In considering sanctions, prior sanctionable behavior may be considered. Mokay v. Mokay, 111 AD3d 1175 [3rd Dep't 2013]. Mr. Gross has acknowledged the Court's finding that he can be "brash and outspoken." (NYSCEF Doc. 26, ¶ 5.) Such brash conduct was described by Hon. Sabrina Kraus when she sanctioned Mr. Gross in 100 E. 21st St. Equities LLC v. [*5]Cummings-Sharpe. 15 Misc 3d 1132[A] [Civ. Ct., Kings County 2007]. In her decision, Judge Kraus found that Mr. Gross displayed "behavior that indicates a contempt for the court, the litigants, and his obligations as an officer of the court." Id. at *8. Judge Kraus also noted the Mr. Gross made unfounded and baseless statements about the court, including that the court was "overreacting", issuing decisions "off the cuff", and "unfairly singling him out and penalizing him." Id. at *9.

Neither Mr. Gross' written submission nor his arguments at bar convince the Court that sanctions should not be imposed. Indeed, the Court can find no legal precedent where a party's contrition after engaging in sanctionable behavior impacted a court's decision to impose sanctions.^[FN5] Moreover, while the Court appreciates Mr. Gross' apology, his stated reasons for telling the undersigned to "go fuck [my]self" do not justify or excuse the offense he committed. Nearly every dispute heard in Kings County Housing Court involves litigants who are in serious emotional, physical, and/or psychological turmoil. The Court has heard arguments recently from a tenant who had her face sliced while sleeping on the street the morning her post-eviction Order to Show Cause was to be heard. The Court has also recently heard from a landlord who was receiving treatment for lung cancer and could not convalesce in her home because her upstairs tenant refused to stop smoking. Never, in these cases or any other before the court, has anyone addressed the Court in the manner chosen by Mr. Gross.

The Court does not intend to diminish what is occurring in Mr. Gross' life. To the contrary, the Court credits Mr. Gross' claim that he is experiencing serious turmoil in his personal life comparable to that felt by litigants who regularly appear in Housing Court. But the Court is also inclined to believe that the reason why Mr. Gross felt warranted in using such language while others do not is because, while Mr. Gross is a smart and capable litigator, he ultimately has little to no respect for the Court, if not outright contempt for it.

B. Amount of Sanctions

The culpability of the attorney's conduct is to be considered when determining the dollar amount of the sanctions assessed. Vicom Inc. v. Silverwood Dev., 188 AD2d 1057, 1058 [4th Dep't 1992]. Moreover, the purpose of sanctions is to "address [a] continuous pattern of conduct and deter future frivolous conduct." Grayson v. New York City Dept. of Parks & Recreation, 99 AD3d 418, 419 [2nd Dep't 2012]. The sanction to be paid shall not exceed $10,000.00. 22 NYCRR § 130-1.2.

The court finds a high degree of culpability in Mr. Gross' behavior. Moreover, the $2,500.00 sanction ordered against Mr. Gross by Judge Kraus in 100 E. 21st St. Equities LLC v. Cummings-Sharpe (supra) evidently did not deter Mr. Gross from future conduct, as Mr. Gross has engaged in similar (and arguably more egregious) behavior here. As such, higher sanctions are appropriate in hopes that they will prevent Mr. Gross from engaging in similar behavior in the future. However, the imposition of the maximum sanction is reserved for cases where an attorney made false and material statements about another attorney in court filings to avoid sharing a fee (Dwaileebe v. Six Flags Darien Lake, 11 Misc 3d 958 [S.Ct Cattaraugus County 2006]) or for defending a legal malpractice claim over a nine-year period using frivolous motion [*6]practice (Selletti v. Liotti, 2010 NY Slip Op. 31712[U] [Sup. Ct, Queens County 2010] modified on appeal 104 AD3d 835 [2nd Dep't 2013].) While Mr. Gross' conduct is egregious, it does not reach the level required for a maximum sanction. As such, the Court finds it reasonable to impose sanctions in the amount of $4,000 against Mr. Gross. Sanctions on an attorney are payable to the Lawyer's Fund for Client Protection at 119 Washington Avenue, Albany, New York 12210. 22 N.Y.C.R.R. § 130-1.3.

C. Mr. Gross Must Be Referred to the Disciplinary Committee

The Rules of the Chief Administrator of the Courts dictate that a judicial officer is required to take appropriate disciplinary action when they "receive information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility." NY Ct. R. § 100.3(D)(3). Reporting attorneys to the Disciplinary Committee for possible violation of the Code of Professional Responsibility is not optional; it is mandated as a part of a judge's judicial duties. NY Ct. R. 100.3(D)(4); NYJUR Courts § 354; NY Jud. Adv. Op. 92-42 (NY Adv. Comm. Jud. Eth.).

The Court is thus required to refer Mr. Gross to the Disciplinary Committee. The Court has made a finding of fact that Mr. Gross asked a court officer to "[t]ell the judge to go fuck himself." There is a substantial likelihood that this act is a substantial violation of the following provisions of the Code of Professional Responsibility: Rule 3.3(f)(2) ("In appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct."); Rule 8.4(d) ("A lawyer of law firm shall not . . . engage in conduct that is prejudicial to the administration of justice.") and Rule 8.4(h) ("A lawyer or law firm shall not . . . engage in any other conduct that adversely reflects on the lawyers fitness as a lawyer"). 22 NYCRR 1200.0.

Case law supports a finding that Mr. Gross violated these provisions of the Code of Professional Responsibility. In Matter of Manchanda, the Appellate Division, First Department found that an attorney violated of Rules 8.4(d) of the Code of Professional Responsibility (supra) for comments made in legal filings "attacking members of the judiciary using 'foul and vile language' to challenge their integrity." 2024 NY Slip Op. 05833, *1. The Appellate Division in Manchanda also found that the same attorney violated Rule 8.4(h) of the Code of Professional Responsibility (supra) for "'offensive language' that [the attorney] used . . . to publicly criticize members of the judiciary." Id. at *2.

Likewise, in Matter of Denenberg, an attorney was found to be in violation of Rule 3.3(f)(2) of the Code of Professional Responsibility (supra) for use of derogatory language about his adversary while in the hallway of Kings Court Housing Court. 192 AD3d 76 (1st Dep't 2020). The Court should be afforded the same respect as an adversary to a proceeding, so Mr. Gross' comments to the court likely violate this provision.

Accordingly, it is

ORDERED that Scott Gross' statement "You can tell the judge to go fuck himself" was disrespectful and unprofessional, constituted a baseless and ad hominem attack against the Court, and is therefore sanctionable, and it is further

ORDERED that the Court sanctions Scott Gross pursuant to 22 N.Y.C.R.R. § 130-1.1; and it is further

ORDERED that within twenty days of this Order being posted to NYSCEF, the Court orders Scott Gross to pay $4,000.00 to the Lawyer's Fund for Client Protection at 119 Washington Avenue, Albany, New York 12210 pursuant to 22 N.Y.C.R.R. § 130-1.3; and it is further

ORDERED that Scott Gross provide the Court proof of payment within ten days after doing so.

Also, because this Court has determined that there is a substantial likelihood that Scott Gross, Esq., has substantially violated several provisions of the New York Rules of Professional Conduct, the court is required to refer Mr. Gross to the Attorney Grievance Committee for the Tenth Judicial District.^[FN6] The Court will reference this decision and order.

This constitutes the decision and order of the Court, which will be posted to NYSCEF and mailed to the parties.