| Mokay v Mokay |
| 2013 NY Slip Op 07888 [111 AD3d 1175] |
| November 27, 2013 |
| Appellate Division, Third Department |
| Andrew Mokay et al., Respondents, v Connie Mokay,Defendant, and Frederick J. Neroni, Appellant. Tatiana Neroni,Appellant. |
—[*1] Harlem & Jervis, Oneonta (Eric V. Jervis of counsel), for respondents.
Lahtinen, J.P. Appeals (1) from an order of the Supreme Court (Garry, J.), enteredOctober 5, 2007 in Delaware County, which, among other things, denied defendantFrederick J. Neroni's motion to dismiss the complaint against him, (2) from two orders ofsaid court (Becker, J.), entered September 26, 2011 in Delaware County, which, amongother things, denied defendant Frederick J. Neroni's motions to, among other things,disqualify the assigned Acting Supreme Court Justice, (3) from two orders of said court(Becker, J.), entered January 6, 2012 in Delaware County, which, among other things,partially granted plaintiffs' motion for a protective order and sua sponte imposedsanctions on defendant Frederick J. Neroni and Tatiana Neroni, and (4) from an order ofsaid court, entered July 10, 2012, which denied defendant Frederick J. Neroni's motionto, among other things, compel discovery.
The facts underlying this litigation are set forth in our decision in an earlier appeal(67 AD3d 1210 [2009]). Briefly stated, defendant Frederick J. Neroni (hereinafterdefendant), a [*2]former attorney, assisted AndrewMokay Sr., now deceased (hereinafter decedent), in a scheme aimed at circumventing anopen court stipulation in a divorce action by creating an ownership right in decedent'scompanion, defendant Connie Mokay (hereinafter Mokay), to real property that, underthe stipulation, was supposed to be preserved for decedent's children. The children, laterjoined by decedent's estate, commenced this action against defendant and Mokay. InOctober 2007, Supreme Court (Garry, J.), among other things, declared that Mokay heldthe property in a constructive trust for decedent's estate and directed Mokay to transferthe property to the estate. In a series of orders in 2008, which were before us andaffirmed in the earlier appeal, Supreme Court (Fitzgerald, J.), among other things,granted plaintiffs summary judgment against defendant on their fraud and Judiciary Law§ 487 causes of action. Since our prior decision, extensive motion practice hasensued resulting in, as relevant to this appeal, various decisions and orders by SupremeCourt (Becker, J.), which, among other things, denied defendant's motion to disqualifysaid court, imposed sanctions on defendant and his counsel, Tatiana Neroni, and denieddefendant's motion to compel discovery. Defendant appeals from these orders as well asfrom the October 2007 order, and his counsel appeals from the order imposing sanctionson her.
The appeal from the October 2007 order, which was filed in April 2012, is untimely.Defendant contends that he was never served with notice of entry of said order. In our2009 decision in the earlier appeal we noted, as part of the procedural background, theOctober 2007 order and the fact that no appeal had been taken from such order (67 AD3dat 1211). Review of the record and supplemental record from such appeal revealsrepeated references to the October 2007 order by defendant in one of his affirmations.More importantly, the record included a February 2008 motion by plaintiffs that wasserved upon defendant, which contained as an exhibit the October 2007 order, the orderwas referred to in the affirmation of plaintiffs' attorney, and such order contained writtennotice, signed by the clerk, that it had been entered on October 5, 2007. This wassufficient to trigger, as of February 2008, the 30-day period for defendant to take anappeal from such order (seeDokaj v Ruxton Tower Ltd. Partnership, 55 AD3d 662, 662-663 [2008]; Matter of Xander Corp. vHaberman, 41 AD3d 489, 490 [2007]; Meyer v Meyer, 228 AD2d 955,956 [1996], lv dismissed and denied 88 NY2d 1062 [1996]; see also NorstarBank of Upstate NY v Office Control Sys., 78 NY2d 1110, 1111 [1991]; cf. Matter of Reynolds vDustman, 1 NY3d 559, 560 [2003]).
We consider next defendant's argument that Supreme Court (Becker, J.) improperlyrestricted his discovery. It is well established that the trial court has broad discretion incontrolling discovery and disclosure, and generally its determinations will not bedisturbed in the absence of a clear abuse of discretion (see e.g. Those CertainUnderwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845[2008]; Herbenson v CarrolsCorp., 101 AD3d 1220, 1221 [2012]; Feldman v New York State Bridge Auth., 40 AD3d 1303,1305 [2007]). In January 2012, the court granted, in part, plaintiffs' request for aprotective order regarding recent additional demands that had been made by defendant.Thereafter, in February 2012, defendant served plaintiffs with a demand to file a note ofissue, which was followed by a supplemental demand for a bill of particulars. Plaintiffsfiled the note of issue but opposed the supplemental demand, asserting that it was anattempt by defendant to circumvent the January 2012 order. Defendant then moved tostrike the note of issue and compel responses to its supplemental demand. Supreme Courtdenied defendant's motion in July 2012. Upon review of the motions related to discoveryand the pertinent portions of the record—noting the unduly excessive and oftenirrelevant demands by defendant—we are unpersuaded that Supreme Court abusedits discretion.[*3]
Defendant contends that Supreme Court erred indenying his motion to consolidate this Supreme Court action with the Surrogate's Courtproceeding. It is not clear from the rather voluminous record, which is not organized incompliance with our rules (see 22 NYCRR 800.5), whether this issue is properlybefore us. In any event, the court has discretion regarding whether to consolidateproceedings (see Matter ofPowers v De Groodt, 43 AD3d 509, 512 [2007]; Guasconi v Pohl, 2 AD3d1202, 1203 [2003]), and defendant has failed to show an abuse of that discretion orcircumstances whereby we should substitute our discretion for that of the trial court(see Sims v Manley, 69 NY2d 912, 914 [1987]).
Defendant asserts that Supreme Court was disrespectful, biased and had a personalgrudge against him and his counsel, and that the court should have recused itself fromhearing the case. This is not the first time during the pendency of this action thatdefendant has alleged, after an unfavorable decision, that a judge should no longer hearcases involving him (see 67 AD3d at 1213; see also Matter of Adams v Bracci, 100 AD3d 1214,1215-1216 [2012]). The record fails to establish any merit to this assertion (see Matter of Albany County Dept.of Social Servs. v Rossi, 62 AD3d 1049, 1050 [2009]).
We further find no merit to the argument of defendant and his counsel that they wereimproperly subjected to monetary sanctions. Supreme Court provided notice of theground for a possible sanction, afforded a reasonable opportunity to be heard and setforth in a written decision the reasons it was imposing sanctions (see 22 NYCRR130-1.1 [d]; 130-1.2). In its decision, it noted previous frivolous motions and arguments,efforts by defendant and his counsel to unduly delay the case, and their failure to addresssubstantive issues while continuing to directly attack the court on a variety of baselessgrounds. The court acted within its discretion in finding sanctionable conduct andimposing a $2,500 sanction on both defendant and his counsel (see generally Shields vCarbone, 99 AD3d 1100, 1101-1103 [2012]; Ireland v GEICO Corp., 2AD3d 917, 919-920 [2003]).
The remaining arguments have been considered and are either not properly before usor lacking in merit.
Stein, Spain and Egan Jr., JJ., concur. Ordered that the appeal from the order enteredOctober 5, 2007 is dismissed. Ordered that the orders entered September 26, 2011,January 6, 2012 and July 10, 2012 are affirmed, with costs.