PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND LINDLEY, JJ.

CAF 22-00454
Docket No: V-00168-20
CAF 22-00455
Docket Nos: V-00165-20, V-00166-20

IN THE MATTER OF PETER LANG AND DEONNA LANG, PETITIONERS-RESPONDENTS, V MEMORANDUM AND ORDER BRITTANEY LANG AND RONALD MOSCICKI, RESPONDENTS-APPELLANTS. (APPEAL NO. 1.) IN THE MATTER OF PETER LANG AND DEONNA LANG, PETITIONERS-RESPONDENTS, V BRITTANEY M. LANG, RESPONDENT-APPELLANT, AND BENJAMIN A. RACHOW, RESPONDENT. (APPEAL NO. 2.)

Judgment ordered imposing sanction and matter remitted to Family Court for further proceedings in accordance with the following memorandum: In these proceedings pursuant to Family Court Act article 6, respondents-appellants in appeal No. 1, i.e., the parents of the subject child in that appeal, and respondent-appellant in appeal No. 2, i.e., the mother of the subject children in that appeal (collectively, appellants), appealed from orders that denied their respective motions seeking to vacate a prior order of grandparent visitation with respect to the subject children in both appeals (children). The appeals were dismissed by order of this Court entered June 17, 2022. By separate order entered June 17, 2022, this Court directed appellants and their counsel, Michael Anthony Deem, to show cause before this Court by written submission on or before July 18, 2022, why a judgment should not be entered pursuant to 22 NYCRR subpart 130-1 awarding to David J. Pajak, the appellate Attorney for the Children (AFC), costs and imposing upon Deem and appellants financial sanctions for specified frivolous conduct in connection with the appeals. Deem responded by submitting a "Demand for Bill of Particulars," with proof of service upon the Clerk of the Court and the New York State Attorney General, which stated that it was made "[p]ursuant to CPLR § 3042." No further papers were submitted by Deem or appellants in response to this Court's order to show cause.

Pursuant to the Rules of the Chief Administrator of the Courts, "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" (22 NYCRR 130-1.1 [c]). "In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (id.).

Here, the assertions by Deem and appellants that Pajak had been relieved of his duties and responsibilities by appellants, and the related directives that Pajak have no contact with the children and appellants and take no steps on behalf of the children, were frivolous in that they were completely without merit in law (see 22 NYCRR 130-1.1 [c] [1]). Pajak was appointed by order of this Court to represent the children on appeal. As AFC, he was required to consult with and advise the children, have a thorough knowledge of their circumstances, and zealously advocate for them (see 22 NYCRR 7.2 [d] [1]). There is no nonfrivolous basis for the position that appellants had the authority to overrule or disregard this Court's order and prevent Pajak from carrying out his obligations as AFC. To be sure, none of the purported bases that Deem invoked while the appeals were pending authorized appellants to unilaterally relieve or discharge the Court-appointed AFC.

Nevertheless, Deem made the assertion that the AFC had been relieved by appellants in letters to the AFC and this Court, and continued to make that assertion and to proceed as if the AFC had been relieved despite having been advised in letters from the Deputy Clerk of the Court that Pajak was assigned as AFC by order of this Court, that a request for him to be relieved must be made by formal motion, and that the order of this Court appointing Pajak as the children's attorney remained in effect unless vacated by the Court. Indeed, Deem made clear his level of disregard for that information and for this Court's authority, and engaged in further frivolous conduct, by stating in his first response to the Deputy Clerk that "[m]y clients thank the court for offering a court appointed attorney to their children pro bono, but that offer is expressly rejected," and in his second response that, "[t]o be clear, I am not concerned with whether the order appointing Mr. Pajak is in effect or not." The frivolous nature of Deem's conduct is only magnified by its flagrant continuation despite his having been advised by this Court of the lack of any legal basis for such conduct (see 22 NYCRR 130-1.1 [c]).

Deem's additional assertions that he would serve as counsel for both the parents and the children and would "file any and all papers on behalf of the children, to the extent necessary, in consultation with their �fit' parents," were likewise frivolous inasmuch as the children must have independent legal representation (see Family Court Act § 249; 22 NYCRR 7.2 [b]), and the appearance of impropriety is patent (see generally Matter of Fargnoli v Faber, 105 AD2d 523, 524 [3d Dept 1984], appeal dismissed 65 NY2d 631 [1985]).

We further find that Deem engaged in frivolous conduct by making a motion for sanctions against the AFC on grounds that were completely meritless (see 22 NYCRR 130-1.1 [c] [1]).

Additionally, we conclude that Deem's conduct was frivolous insofar as he threatened legal action against the AFC in his personal capacity should he take any steps to meet his responsibilities as AFC in accordance with this Court's order, both because such an action would be completely without merit in law and because that conduct can only be construed as having been undertaken to harass or maliciously injure the AFC (see 22 NYCRR 130-1.1 [c] [1], [2]).

Although appellants themselves also engaged in frivolous conduct, we construe their behavior as having been orchestrated by their attorney and therefore have determined not to sanction them directly. With respect to appellants' counsel, we order that judgment be entered in accordance with 22 NYCRR 130-1.2 imposing a sanction against Deem in the amount of $1,000, payable to the Lawyers' Fund for Client Protection within 30 days of the date of this order. We find the amount of the sanction to be appropriate based upon the nature and extent of the frivolous conduct with respect to the appeals and in order to deter Deem from engaging in such conduct in future proceedings. We note, in that regard, that Deem employed the same tactics during the proceedings in Family Court, asserting that the trial AFC had been relieved of his duties and responsibilities, directing that he have no contact with and take no action regarding the children, and threatening legal action against him.

Further, although our determination that Deem acted frivolously is based only on the conduct discussed above, we note that Deem's submission of a demand for a bill of particulars in response to this Court's order to show cause itself constitutes frivolous conduct. Service upon this Court of a demand for a bill of particulars was completely without merit in law inasmuch as this Court is not a "party" and therefore is not a proper recipient of such a demand (CPLR 3041). Moreover, the document includes demands for information that were unquestionably intended to harass or maliciously injure members of this Court. While Deem will not be sanctioned for that particular conduct, his pattern of frivolous conduct highlights the need for deterrence.

With respect to the issue of costs, we hereby award to Pajak costs in the form of reimbursement by Deem for actual expenses reasonably incurred and reasonable attorney's fees, resulting from Deem's frivolous conduct during the pendency of the appeals. If such costs have previously been reimbursed to Pajak by the State of New York, then Deem shall reimburse the State directly by payment to the State of New York Department of Taxation and Finance, Division of the Treasury. We remit the matter to Family Court to determine the amount of costs and to whom reimbursement is to be made and for an order directing that judgment be entered therefor in accordance with 22 NYCRR subpart 130-1.

Entered: February 2, 2023

Ann Dillon Flynn

Clerk of the Court