| THE FOLLOWING MOTION ORDERS WERE ENTERED AND FILED ON FEBRUARY 10, 2005 |
| Buckley, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ. M-269 People v Garcia, Jason M-324 People v Haughton, Arden M-403X World City Foundation, Inc. v Saccetti M-404X Shala v 570 Lexington Company, L.P. M-405X Katten Muchin Zavis Rosenman v Ciraolo M-406X Philips v Philips M-496X Williams v Rosario M-497X Solis v 225 Fourth, LLC. M-498X Vasquez v Btrac Leasing Corporation, now known as Nationsbanc Auto Leasing, Inc. M-551X Hellmuth Building Co. Limited v Hellmuth Owners Corp. M-552X Grant v Prestige Bay Plaza Development Corp. M-553X Runnerless Knits, Inc. v The Hazen Group Appeals withdrawn. |
| Buckley, P.J., Tom, Marlow, Gonzalez, Catterson, JJ. M-231 Huggins v Moore Appeals and cross appeal consolidated, as indicated; time to perfect same enlarged to the June 2005 Term. |
| Buckley, P.J., Saxe, Friedman, Williams, Sweeny, JJ. M-268 In the Matter of the Liquidation of Union Indemnity Insurance Company of New York - The Superintendent of Insurance of the State of New York v Wong Time to perfect appeal enlarged to the September 2005 Term. |
| Buckley, P.J., Andrias, Sullivan, Ellerin, Williams, JJ. M-109 Maldonado v New York City Department of Buildings Stay and other relief denied. |
| Buckley, P.J., Tom, Saxe, Friedman, Sweeny, JJ. M-77 People v Pelt, Anthony Defendant permitted to serve and file a pro se supplemental brief on or before March 14, 2005; the People's response shall be served and filed on or before April 13, 2005; all as indicated. |
| Buckley, P.J., Friedman, Ellerin, Nardelli, JJ. M-4397 People v Medina, Gonzalez Writ of error coram nobis and other relief denied. |
| Tom, J.P., Andrias, Friedman, Sullivan, Nardelli, JJ. M-12 People v Joseph, Gary, also known as Luc, Joseph Appeal dismissed. |
| Tom, J.P., Friedman, Ellerin, Sweeny, Catterson, JJ. M-5751 101123 LLC v Solis Realty LLC Stay of enforcement granted on condition that within 10 days of the date of entry plaintiff-appellant post an undertaking of $100,000 and perfect the appeal for the June 2005 Term; vacatur of stay and dismissal of appeal granted unless perfected for said Term. |
| Tom, J.P., Andrias, Friedman, Sullivan, Nardelli, JJ. M-5828 In the Matter of C., "Male", also known as C., Miguel, also known as C., Miguel Jose - St. Christopher-Ottilie Leave to prosecute appeal as a poor person granted, as indicated. |
| Tom, J.P., Andrias, Friedman, Sullivan, Nardelli, JJ. M-24 In the Matter of Hyman v New York State Division of Parole Leave to prosecute appeal as a poor person granted to the extent indicated. |
| Tom, J.P., Andrias, Friedman, Sullivan, Nardelli, JJ. M-9 People v Collins, Mark Time to perfect appeal enlarged to the June 2005 Term. |
| Tom, J.P., Mazzarelli, Marlow, Nardelli, Catterson, JJ. M-224 In the Matter of D., Tashaba Time to perfect appeal enlarged to the June 2005 Term. |
| Tom, J.P., Mazzarelli, Marlow, Nardelli, Catterson, JJ. M-208 Suwareh v State of New York Time to perfect appeal enlarged to the September 2005 Term. |
| Tom, J.P., Andrias, Friedman, Sullivan, JJ. M-63 Carr v Caputo Enlargement of time to perfect appeal denied; appeal and cross appeals dismissed. |
| Tom, J.P., Andrias, Sullivan, Friedman, JJ. M-5631 People v Gonzalez, Thomas Reargument or other relief denied. |
| Tom, J.P., Sullivan, Gonzalez, Catterson, JJ. M-5827 Serradilla v Lords Corporation (And another action) Reargument or other relief denied. |
| Tom, J.P., Mazzarelli, Marlow, Nardelli, Catterson, JJ. M-83 People v Wiltshire, James V., also known as Wiltshire, James Leave to delete portion of appellant's brief granted, as indicated; appeals adjourned to the May 2005 Term. |
| Mazzarelli, J.P., Ellerin, Nardelli, Gonzalez, Catterson, JJ. M-5581 Nasr v Triborough Bridge and Tunnel Authority M-5704 Enlargement of time to perfect appeal from the order entered on or about October 31, 2003, and for consolidation with the appeal entered on or about February 9, 2004 denied; appeals dismissed. |
| Mazzarelli, J.P., Saxe, Ellerin, Williams, Sweeny, JJ. M-147 In the Matter of P., Christopher and P., Brian - Administration for Children's Services Office of Legal Affairs Time to perfect appeals enlarged to the June 2005 Term. |
| Mazzarelli, J.P., Andrias, Friedman, Ellerin, Gonzalez, JJ. M-4282 DeRosa v Chase Manhattan Mortgage Corporation M-4881 Renewal and/or reargument denied; leave to enjoin appellant from filing any further motions or papers with respect to this action and related relief denied. (See M-5345, decided simultaneously herewith.) |
| Mazzarelli, J.P., Andrias, Friedman, Ellerin, Gonzalez, JJ. M-5345 DeRosa v Chase Manhattan Mortgage Corporation On the Court's own motion, pursuant to 22 NYCRR § 130-1.1 et seq., sanctions in the amount of $2000 are imposed against David B. Cohen, Esq., and sanctions in the amount of $250 are imposed against Thomas D. Shanahan, Esq., payable to the Lawyers' Fund for Client Protection. The Clerk of the Supreme Court, New York County, is directed to enter judgment accordingly. Plaintiff's counsel unilaterally amended an appellate caption, without leave of court, to substitute "JP Morgan Chase, sued herein as Chase Manhattan Mortgage Corp." for Chase Manhattan Mortgage Corp., for the express purpose of pressing an appellate argument that the motion court was statutorily disqualified from presiding over this case due to its undisclosed ownership of stock in JP Morgan Chase (see, Judiciary Law § 14). Further, they supplemented the appellate record with portions of the motion court's personal financial disclosure statements, which were not part of the record before the motion court. Finally, they filed an inaccurate certification, pursuant to CPLR 2105, that the record on appeal constituted a true and complete copy of the record before the motion court. 22 NYCRR § 130-1.1[c] sets forth three categories of "frivolous conduct" for which the court has discretion to impose costs or sanctions. Those are: (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. Conduct which violates any of the three subdivisions is grounds for the imposition of sanctions. Here, counsel violated all three sections, requiring the imposition of a harsher penalty. Initially, counsel had the opportunity to raise the issue of the motion court's alleged financial interest in the litigation by way of a proper motion before the IAS court. Curiously, for counsel who claim to have a genuine concern about this alleged conflict of interest, they did not make any disqualification motion. Instead counsel chose to unilaterally amend the caption to match an entry in the motion court's personal financial disclosure statements, and based upon that to argue for the first time on appeal that the motion court had a financial interest in the substituted lead defendant. This Court, in reliance upon the CPLR 2105 certification, was misled to believe that the motion Court's personal financial information was part of the record before the motion court. Counsel's acts misled the Court and resulted in the wasted expenditure of time and energy by plaintiff's opponents and by this Court, warranting the imposition of sanctions under 22 NYCRR § 130-1.1. The disparity in the sanctions imposed against Mr. Cohen and Mr. Shanahan reflects our view of the relative penalties required to deter future deceitful behavior. Mr. Shanahan's submission shows his appreciation of the seriousness of the matters involved. He affirms that he drafted certain portions of the appellate brief and that he is responsible for the caption, the contents, and the CPLR 2105 certification based upon his agreement to have his name appear on the brief and the record as co-counsel. However, he states that he was not aware of the misleading and improper material until he received a copy of the bound briefs and record. While Mr. Shanahan failed to act to correct these improprieties, in his submission he accepts responsibility for his part in the misconduct. Further, Mr. Shanahan demonstrates respect for both the litigants involved and the judiciary. By contrast, Mr. Cohen fails to appreciate the seriousness of his acts, and his submission contains a barrage of accusations of bias. While Mr. Cohen admits intentionally altering the appellate caption and adding the financial disclosure statement to the record, he attempts to defend his actions by asserting that he made sure that this Court was not misled. However, this Court was initially deceived. The certification was false on its face. His alteration of the caption was done by design, without permission. Further, Mr. Cohen takes no responsibility and expresses no remorse. Instead, he makes derogatory and undignified statements about the judiciary. The conduct of these attorneys calls for the imposition of sanctions in the amount of $2000 against Mr. Cohen and $250 against Mr. Shanahan. All concur except Andrias, J., who dissents as follows: As noted in my prior dissent (10 AD3d 317, 325 [2004]) there was no basis for the majority's sua sponte direction that plaintiff and his counsel show cause why a sanction pursuant to part 130 of the Rules of the Chief Administrator should not be imposed upon them. Nothing in the submissions directed on the issue adds anything to warrant the sanctions now being imposed. In fact, plaintiff's counsel's assertion that he acted in good faith is uncontradicted. (See M-4282/M-4881, decided simultaneously herewith.) |
| Andrias, J.P., Saxe, Sullivan, Ellerin, Sweeny, JJ. M-119 In the Matter of Williams v The City of New York Time to perfect appeal enlarged to the September 2005 Term. |
| Andrias, J.P., Saxe, Sullivan, Ellerin, Sweeny, JJ. M-203 In the Matter of G., Mathew Time to perfect appeal enlarged to the June 2005 Term. |
| Andrias, J.P., Saxe, Sullivan, Ellerin, Sweeny, JJ. M-5849 Wylan v Pandozy Appeals consolidated; consolidated appeals dismissed unless perfected for the September 2005 Term, as indicated. |
| Andrias, J.P., Saxe, Sullivan, Ellerin, Sweeny, JJ. M-233 Rogovin v Wasserman M-312 Reimbursement of costs denied, as indicated. |
| Andrias, J.P., Saxe, Sullivan, Ellerin, Sweeny, JJ. M-220 In the Matter of Lugo v New York City Housing Authority Leave to prosecute appeal as a poor person denied, with leave to renew, as indicated. |
| Andrias, J.P., Saxe, Ellerin, Sweeny, Catterson, JJ. M-5365Clark Construction Corporation v BLF Realty Holding M-5505 Corp. M-5507 M-5802 Reinstatement of the order of this Court entered October 5, 2004 (M-3803/M-3928) granted, as indicated; this Court's order entered November 12, 2004 (M-5149) vacated. Plaintiffs directed to perfect their appeal from the order entered on or about December 1, 2004 for the June 2005 Term, to which term appeal and cross appeal adjourned (M-5802). Plaintiffs directed to include in their record on appeal only Exhibits A, B, C to the aforesaid memorandum of law; cross motion otherwise denied. Dismissal of appeal or other relief denied (M-5505). Enlargement of time to file respondent's brief on cross appeal granted (M-5507), all as indicated. |
| Saxe, J.P., Friedman, Marlow, Sullivan, Williams, JJ. M-5881 Taylor v New York City Police Department FOIL Unit Leave to prosecute appeal as a poor person denied, with leave to renew, as indicated. |
| Marlow, J.P., Sullivan, Ellerin, Catterson, JJ. M-41 In the Matter of Marino v New York City Department of M-42 Correction, Records Access Officer (And another action) Leave to prosecute appeals as a poor person denied. |
| Tom, J.P., Marlow, Nardelli, Gonzalez, Catterson, JJ. M-5142 In the Matter of Max Marcus Katz, an attorney and counselor-at-law: Respondent publicly censured. Opinion Per Curiam. All concur. |