| Capetola v Capetola |
| 2012 NY Slip Op 05074 [96 AD3d 612] |
| June 21, 2012 |
| Appellate Division, First Department |
| Susan Capetola, Respondent, v Anthony A. Capetola,Appellant. Eliot F. Bloom, Nonparty Appellant. |
—[*1] Mary Ellen O'Brien, Garden City, for Eliot F. Bloom, appellant.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered on or aboutJune 7, 2011, which, after a hearing, imposed sanctions upon defendant Anthony A. Capetola andnonparty Eliot F. Bloom, Esq., in the amount of $10,000 each to be paid to the Lawyers' Fund forClient Protection, unanimously affirmed, with costs.
Defendant, a lawyer involved in his divorce proceedings, submitted an affidavit to the courtthat was intentionally misleading in that he stated that he opposed renting out an apartment thatwas a disputed marital asset because he needed to use it at times for work purposes. He failed todisclose that, at that time, he was renting the apartment to the daughter of his lawyer (Bloom) foran amount that was substantially below market rate. This deliberately misleading representationconcerning marital assets was properly found to be sanctionable, as it related to material facts ona pending motion (see Weisburst vDreifus, 89 AD3d 536 [2011]; 22 NYCRR 130-1.1 [c] [3]).
The court also properly found that Bloom had engaged in sanctionable conduct since hesubmitted the misleading affidavit, signing the certification on its back. The evidence alsoshowed that Bloom proceeded to engage in frivolous conduct, including calling the police whenplaintiff wife entered the apartment unaware that anyone might be there, and found Bloom'sdaughter there, and accusing plaintiff of trespass and violation of criminal laws. When plaintiff'scounsel reminded Bloom that the apartment was held in plaintiff's name and that she wasunaware of the secret rental arrangement, Bloom wrote letters to plaintiff's counsel that wereinsulting, legally incorrect, and characterized by the court as "shockingly unprofessional" and"unethical." Under the circumstances, the court properly found Bloom's conduct to be frivolouswithin the meaning of 22 NYCRR 130-1.1 (see Weisburst, 89 AD3d at 536;Nachbaur v American Tr. Ins. Co., 300 AD2d 74, 75 [2002], lv dismissed 99NY2d 576 [2003], cert denied 538 US 987 [2003]). Moreover, Bloom, who testified onhis own behalf at the sanctions hearing, was afforded a reasonable opportunity to be heard(see 22 NYCRR 130-1.1 [d]; compare Cangro v [*2]Cangro, 272 AD2d 286, 287 [2000]).
The amount of the sanctions imposed was not an abuse of discretion (see 22 NYCRR130-1.2).
We have considered appellants' remaining contentions and find them unavailing.Concur—Tom, J.P., Andrias, Friedman, Moskowitz and Renwick, JJ.