| Wilson v Wilson |
| 2011 NY Slip Op 06000 [86 AD3d 824] |
| July 21, 2011 |
| Appellate Division, Third Department |
| Kristy Wilson, Respondent, v Barry Wilson Jr., Defendant.Kymberly Robinson, Appellant. |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Karla Williams Buettner of counsel),for respondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Muller, J.), entered November 1,2010 in Essex County, which granted plaintiff's application for sanctions against defendant'sformer counsel.
Kymberly Robinson was defendant's counsel of record in this matrimonial action when, onJuly 12, 2010, Supreme Court received a letter purportedly authored by her stating that the matterhad settled and the parties were requesting that a conference with the court scheduled for the nextday be adjourned.[FN1]Notwithstanding this letter, plaintiff's counsel appeared for the conference and advised the courtthat while a possible settlement of the action had been discussed with one Francois Nabwangu,who claimed to be an attorney affiliated with Robinson, the matter had not settled, nor did theparties agree that the conference should be adjourned. In [*2]response, the court directed that all involved appear before it onJuly 16, 2010 and be prepared to discuss, among other things, the representations contained inthe letter as well as Robinson's failure to appear at the conference.[FN2]
On July 16, 2010, W. Bradney Griffin, at Robinson's request, appeared with defendant at theconference and was substituted as his counsel. A scheduling order for the action was issued bySupreme Court, directing plaintiff's counsel to submit her billing records for the "abortedconference of July 13, 2010, for the [c]ourt to consider possible sanctions against[Robinson]."[FN3]After it reviewed plaintiff's proposed bill of services,[FN4]the court directed that plaintiff submit an order directing Robinson to pay counsel fees, but didnot set the amount.
Meanwhile, Robinson retained her own counsel, who contacted Supreme Court andrequested permission to present submissions explaining why Robinson failed to appear at theJuly 13, 2010 conference and detailing why she had no involvement in the preparation of thesettlement letter that was sent to the court. The court advised Robinson's counsel that he couldsubmit "a Notice of Appearance to Chambers, stating briefly your position relative to plaintiff'spending application for counsel fees. Upon receipt of same, [the court] will set a deadline for anyfurther submissions." A week later, Robinson's counsel filed a notice of appearance with a letterstating that, prior to the July 13 conference, Nabwangu had assumed responsibility forrepresenting defendant in the matrimonial action and, without Robinson's knowledge, had draftedthe letter that was sent to the court advising that the matter had settled. Counsel further stated thatRobinson denied signing the letter, had no involvement in its preparation, and welcomed "anopportunity to present evidence or argument in a more formal manner."
Weeks later, Supreme Court issued a decision finding that Robinson was in fact responsiblefor the settlement letter being sent to the court and she had not provided an acceptable excuse forher failure to attend the scheduled court conference. The court also determined that Robinson hadnot filed a proper substitution of counsel form relieving her of the responsibility of representingdefendant in this action. Based on these findings, the court determined that Robinson hadengaged in frivolous conduct (see 22 NYCRR 130-1.1 [c]), and sanctioned her byrequiring that she pay plaintiff $1,000 for expenses and counsel fees incurred as a result of thatconduct. Robinson paid the sanction, and now appeals.
Contrary to plaintiff's contention, Robinson's payment of the sanction does not render herchallenge to the court order moot. The terms of the order did not stay or suspend the payment ofthese costs and the adverse impact a sanction may have on Robinson's professional [*3]reputation is self-evident (see Matter of Seagroatt Floral Co.[Riccardi], 78 NY2d 439, 448 n [1991]).[FN5]Moreover, in our view, Supreme Court's determination that Robinson was responsible for thesubmission of the settlement letter is not supported by the record. While the representations inthe letter regarding the status of this action were undoubtedly material and false—and, assuch, constitute frivolous conduct (see 22 NYCRR 130-1.1 [c] [3])—it is by nomeans clear from the evidence in the record that Robinson authored the letter or was responsiblefor it being sent to the court. While the letter bore her name and her apparent signature,Robinson, through counsel, denied signing it or even knowing of its existence. We also note thatno other evidence has been presented establishing that Robinson had a hand in the creation ofthis letter and, on the day before the conference, plaintiff's counsel acknowledged speaking withNabwangu, and not Robinson, about a possible settlement of the action. As a result, any sanctionbased upon a finding that Robinson was responsible for this letter is not supported by the recordevidence and must be vacated.
We are also of the view that while Robinson's failure to attend the court conference and file aproper substitution of counsel form may warrant the imposition of court costs (see 22NYCRR 130-2.1), neither, on the facts presented, constitutes sanctionable conduct. This isespecially true given the absence of any evidence that this failure to file the form or attend theconference was part of a deliberate effort to delay these proceedings. As for the imposition ofcosts, it is undisputed that on the date of the conference, Robinson remained defendant's counselof record and clearly had not satisfied her obligation to insure that defendant and his new counselappeared at the scheduled conference. 22 NYCRR 130-2.1 (a) provides that a court "may awardcosts in the form of reimbursement for actual expenses reasonably incurred and reasonableattorney's fees, upon any attorney who, without good cause, fails to appear at a time and placescheduled for an action or proceeding to be heard before a designated court." Here, SupremeCourt appropriately determined that Robinson was responsible for any additional legal costs thatplaintiff incurred as a direct result of her—and her client—not attending thisscheduled court conference. Therefore, while sanctions on this record are not warranted, we doconclude that Robinson should be assessed costs pursuant to 22 NYCRR 130-2.1, and that the$1,000 imposed by the court is sufficient to satisfy Robinson's obligation for the additional legalexpenses incurred by plaintiff for attending this conference.
Mercure, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as imposed sanctions upon KymberlyRobinson in the amount of $1,000 pursuant to 22 NYCRR 130-1.1; costs are imposed uponRobinson in the amount of $1,000 pursuant to 22 NYCRR 130-2.1; and, as so modified,affirmed.
Footnote 1: While the parties apparentlyagree that the letter bore the purported signature of Robinson, the letter included in the record isunsigned.
Footnote 2: Plaintiff moved for a defaultjudgment after defendant failed to appear at the conference and had not served an answer to thecomplaint. Supreme Court initially reserved on the motion, but ultimately denied it.
Footnote 3: There is no evidence in therecord that Robinson was served with the scheduling order or given notice of the conferenceduring which potential sanctions were first discussed.
Footnote 4: The bill, which totaled morethan $7,000, included legal fees above and beyond what was incurred by plaintiff for the July 13,2010 conference.
Footnote 5: Plaintiff's complaints regardingthe incomplete record were addressed by the supplemental records provided by Robinson.