| Shields v Carbone |
| 2012 NY Slip Op 07026 [99 AD3d 1100] |
| October 18, 2012 |
| Appellate Division, Third Department |
| Beverly Shields, as Delaware County Treasurer, Plaintiff, v RichardM. Carbone et al., Defendants, and O'Connell and Aronowitz, P.C., Respondent. Tatiana Neroni,Appellant. |
—[*1] O'Connell & Aronowitz, PC, Albany (Stephen R. Coffey of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Becker, J.), entered August 2,2011 in Delaware County, which sua sponte imposed sanctions against Tatiana Neroni.
Attorney Tatiana Neroni represented defendant Richard M. Carbone in his efforts to recoverbail money posted in a criminal matter. In response to Carbone's motion, Supreme Court, amongother things, ordered plaintiff to release certain bail proceeds to Carbone.[FN1] The court also ordered Neroni to show cause as to why an order should not be entered againsther imposing sanctions "for gratuitous allegations of misconduct and threats against this courtcontained in her reply affirmation, dated March 14, 2011." Neroni filed a June 2011 affirmation[*2]in opposition. The court held that arguments advanced byNeroni in her March and June affirmations were frivolous and imposed sanctions against her inthe amount of $2,500. Neroni appeals.[FN2]
Initially, the imposition of sanctions is not barred by collateral estoppel or law of the case.Neroni contends that Supreme Court could not impose sanctions because this Court hadpreviously declined a request for sanctions in this case (Shields v Carbone, 78 AD3d 1440 [2010]). Our prior ruling,however, could not have addressed Neroni's conduct that occurred after that decision was issued.Thus, Supreme Court properly considered for the first time whether Neroni should be sanctionedfor allegations in her March 2011 affidavit.
Neroni was provided notice of the grounds for the possible imposition of sanctions and wasafforded a reasonable opportunity to be heard. Sanctions may be imposed either upon a party'smotion or "upon the court's own initiative, after a reasonable opportunity to be heard" (22NYCRR 130-1.1 [d]). Courts have reversed orders imposing sanctions where there was no noticeat all (see Deeb v Tougher Indus., 216 AD2d 667, 668 [1995]), where the motion listed aspecific statute but the court imposed sanctions under a different regulation for which there wasno notice (see Matter of Dempsey vArreglado, 95 AD3d 1388, 1391 [2012]), and where sanctions were imposed forconduct other than that cited by the moving party, for which the sanctioned party had no notice oropportunity to be heard (see Telemark Constr. v Fleetwood & Assoc., 236 AD2d 462,463 [1997]). The order to show cause here, entered on the court's own initiative, sufficiently putNeroni on notice of the conduct at issue by referring to her allegedly inappropriate statements ina specified affidavit; Supreme Court did not need to list in the order to show cause eachparticular phrase or portion of that affidavit that was considered inappropriate or frivolous.
A notice of motion must list "the relief demanded and the grounds therefor" (CPLR 2214[a]). Although "[i]n specifying the grounds of the motion, it does no harm to cite chapter andverse," and that may be the better practice as it clearly puts the party on notice of the groundsalleged (Patrick M. Connors, Practice Commentaries, McKinney's Cons Law of NY, Book 7B,CPLR 2214:3 at 113; see Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Churchof City of N.Y. v 198 Broadway, 76 NY2d 411, 413 n [1990]), there is no requirement thatthe notice of motion list the statute or regulation that is the basis of the sanctions motion as longas some grounds are mentioned (seeMatter of Blauman-Spindler v Blauman, 68 AD3d 1105, 1106 [2009]). Here, whileNeroni stated in her June 2011 affidavit that she was unsure whether Supreme Court wasproceeding against her "in a contempt proceeding or in a frivolity proceeding," she was notprejudiced because her affidavit addressed the facts and law under either scenario (see id.at 1106). Further, she has not indicated that she would have provided any additional or differentinformation had Supreme Court's order to show cause been more specific. Hence, the order toshow cause provided sufficient notice and Neroni was afforded an [*3]opportunity to be heard.[FN3]
Neroni claims that the judge was without jurisdiction or was disqualified to preside over thiscase. Her affidavit stated that the judge should recuse himself, but she did not actually move forrecusal. Absent legal disqualification (see Judiciary Law § 14), which did not existhere, a judge may determine for himself or herself whether recusal is warranted, and a decision inthat regard will only be overturned if there was an abuse of discretion (see Mokay v Mokay, 67 AD3d1210, 1213 [2009]). We find no abuse of discretion here, as the allegations supportingdisqualification are unsupported.[FN4]
Supreme Court had a legitimate basis for imposing $2,500 in sanctions against Neroni. Whilewe agree with Neroni that the court should not have considered prior behavior of her husbandand former law partner, Neroni personally and jointly participated in some of the referencedbehavior and the evidence of her frivolous conduct was sufficient even without relying oninformation regarding cases in which her husband participated. We disagree with Neroni'sassertion that the court erred in relying on her behavior in prior cases, as the court could consider"the circumstances under which the conduct took place" (22 NYCRR 130-1.1 [c]), which wouldinclude whether her behavior here was aberrant or part of a pervasive pattern. Additionally,Neroni herself cited certain other actions and proceedings, including references to indexnumbers, so the court did not err in relying on her behavior in those cases that she raised in heraffidavit. Some of Neroni's statements in her four-page March 2011 affidavit accused the court ofrendering decisions for political or financial reasons, willfully disobeying the law, and eithercommitting crimes or condoning the commission of crimes by other public officials. She alsothreatened to call the judge as a witness and asked him to step down from the case, stating thathis refusal would force a recusal motion "where we will have to list and analyze in detail JudgeBecker's inappropriate behavior." The court did not abuse its discretion in finding theseallegations to be frivolous (see Matter of Jemzura v Mugglin, 207 AD2d 645, 647[1994], appeal dismissed 84 NY2d 977 [1994]). Although the order to show cause didnot mention Neroni's June 2011 affidavit as a basis for the motion—which would havebeen impossible because the affidavit was in response to the motion—the court couldconsider her statements in that document when imposing sanctions because Neroni used that14-page affidavit to adhere to, continue and greatly expand upon her frivolous arguments. Thecourt's written decision described in detail the conduct that formed the basis of its decision, thatthis conduct was deemed frivolous because her arguments had no basis in law and were intendedto harass and injure the court, and why $2,500 was an appropriate amount for the sanction(see 22 NYCRR 130-1.2). As the court did not abuse its discretion, we will not disturbthe sanctions (see First Deposit Natl. Bank v Van Allen, 277 AD2d 858, 860-861[2000]).
Peters, P.J., Rose, Spain and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Plaintiff appealed from thatorder (Shields v Carbone, 99 AD3d 1055 [2012] [decided herewith]).
Footnote 2: Although an order entered on acourt's sua sponte motion is not appealable as of right because it is not considered an orderdeciding a motion made on notice (see CPLR 5701 [a] [2]; Sholes v Meagher,100 NY2d 333, 335 [2003]), we will treat Neroni's notice of appeal as an application for leave toappeal and grant that application (see CPLR 5701 [c]; Gutin-Nedo v Marshall,Cheung & Diamond, 301 AD2d 728, 729 n [2003]).
Footnote 3: Oral argument was alsoscheduled on Supreme Court's motion, but Neroni chose not to attend.
Footnote 4: We note that on the merits of theunderlying motion for which Neroni submitted the March 2011 affidavit, Supreme Court ruled infavor of her client, indicating a lack of bias (see Matter of Shaffer v Winslow, 17 AD3d 766, 768 [2005]).