Papers NumberedSummons, Petitions, Affidavits & Exhibits Annexed 1Notice of Cross-Motion, Affirmation & Exhibits Annexed 2Notice of Cross-Motion, Affidavit & Exhibits Annexed 3Affirmation in Opposition & Exhibits Annexed 4Court Proceedings Transcripts 3 Upon the foregoing papers and for the following reasons, the Motion by Petitioner Debbie E. (hereinafter “Maternal Grandmother”) for sanctions against the counsel for Respondents S.F. & T.E. (“hereinafter “Parents”), is denied; the Cross Motion by the Parents for costs and sanctions against her, is granted as provided hereinbelow.The following facts are essentially undisputed. By Petition dated February 20, 2018, Grandmother, a paralegal in the Family Court and matrimonial fields in Nassau County, commenced the instant proceeding for grandparent visitation with her grandson, the subject Child, pursuant to Domestic Relations Law §72. The Child, now seven years old, resides with the Parents in their intact family in Brooklyn. The matter has been contentious from its inception based on the palpable animosity between the Parents and Grandmother. Shortly after transfer to Kings County Family Court in July 2018, the Parents moved to dismiss the proceeding arguing that equity should not intervene to grant standing to Grandmother in that she had a tenuous relationship with the Child, was openly hostile and uncivil toward them, and did nothing to pursue a relationship with her grandchild since December 2015.In opposition, Grandmother cross-moved for a temporary order of visitation with the Child and — at that initial stage — for costs and sanctions against the Parents’ now former counsel. Following argument and briefing, by Order dated November 19, 2018, the Kings County Family Court (Vargas, J.) found that Grandmother had standing to visit with the Child, granted her temporary Observation & Evaluation (“O&E”) visits with him under the auspices of Comprehensive Family Services (“CFS”), and scheduled a February 28, 2019 hearing on whether her visitation would be in the best interests of the Child. Despite that victory, Grandmother has subsequently engaged in a campaign of vexatious letter writing, telephone calling, repeated court appearances and motion practice tending to smear and annoy the Parents and their counsel, David Chidekel, Esq.Specifically, Grandmother has filed at least six motions in less than nine months seeking, among other things, anticipatory contempt against the Parents for their alleged failure to comply with the O&E visits, discovery of the Mother’s personal psychologist’s records, a stay of all court-ordered discovery proceedings, and sanctions for allegedly frivolous conduct by Parent’s former and current counsel. The latest Motion No. 6 again sought the continuation of the O&E visits with the Child, despite already having obtained two Orders for 12 visits on February 4, 2019 and March 1, 2019. After long and contentious oral argument on that motion, by Order dated April 11, 2019, the Undersigned reiterated the continuation of the O&E visits for the Grandmother, permitted her to give small gifts to and take photographs of the Child, and set out a discovery schedule. Instead of complying with the discovery schedule, Grandmother refused to answer any of the interrogatories/discovery demands and immediately sought to stay all discovery in an appeal of the Order to the Appellate Division, Second Department. Her appeal was unsuccessful and denied by Order dated April 25, 2019 (see Matter of Eisenstadt v. Feil, ___AD3d___ [2d Dept. 2019]).By Notice of Motion No. 8 returnable April 17, 2019, the Grandmother now purports to move for an order again granting her O&E visitation every week on Sundays at her convenience and with a selected evaluator, and for sanctions against the Parents’ counsel for frivolous conduct. In her affidavit supporting the Motion, Grandmother points to all the perceived procedural and stylistic defects in counsel’s filing of his papers and again provides a painfully detailed factual recitation of her perceptions and actions during the O&E visits with the Child; it is only in the last paragraphs of her twelve-page affidavit that she conclusorily asks for sanctions against the Parents’ counsel. In opposition, the Parents cross-move, by Notice of Cross Motion dated April 15, 2019, for an order directing Grandmother to pay fees and costs for her “frivolous and harassing motions” in the sum of $6,000, and a direction that the Clerk of the Court does not accept additional motions from her without the court’s prior approval. This Court agrees with the Parents.Pursuant to 22 NYCRR 130-1.1(a), a court “in its discretion, may award to any party or attorney in any civil action or proceeding before the court…costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct[,]” and, in “ addition to or in lieu of awarding costs, * * * may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (see Pickens v. Castro, 55 AD3d 443 [1st Dept. 2008]; Costantini v. Costantini, 44 AD3d 509 [1st Dept. 2007]). Conduct is frivolous where “it is completely without merit in law and cannot be supported by reasonable argument…; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or it asserts material factual statements that are false” (22 NYCRR 130-1.1[c][1-3]; see Premier Capital v. Damon Realty Corp., 299 AD2d 158 [1st Dept. 2002]). A party or attorney could be sanctioned as “a proper exercise of discretion in light of [a party or] his attorney’s repetitive and meritless motions, including, but not limited to, the improper anticipatory default motion in” an action and insulting behavior to adversaries or the court (Nachbaur v. American Tr. Ins. Co., 300 AD2d 74, 75 [1st Dept. 2002], lv denied 99 NY2d 576 [2003], cert denied 538 US 987 [2003]; see Grozea v. Lagoutova, 67 AD3d 611 [2nd Dept. 2009]).Applying these legal principles to the matter at bar, the Parents have sufficiently established entitlement to the imposition of costs and sanctions against Grandmother. Although the parties are both seeking sanctions against each other, it is the Parents who have shown a pattern of vexatious, duplicative and frivolous conduct by Grandmother in that she has repeatedly placed telephone calls to counsel and the court, engaged in litigious behavior and filed six motions requiring over 12 court appearances in less than nine months of litigation. Most of the motions filed by Grandmother pursue the same or similar relief such as improperly seeking an anticipatory finding of contempt against the Parents or additional O&E visits, which visits have already been ordered “to continue during the pendency of the proceedings.” Since Grandmother has had several visits with the Child and the Order has been obeyed by the Parents, her repetitive motions appear harassing and frivolous. Moreover, this Court has observed and experienced Grandmother’s irksome behavior in the courtroom wherein she repeatedly belittles counsel’s legal knowledge and insults his professionalism, not to mention her penchant for constant interruptions of all counsel and the Court.Upon review of the papers presented here, the Court finds that Grandmother’s filing of these repetitive motions and court appearances appear to have been undertaken to delay and prolong the matter, if not to harass and bully the Parents and their counsel (see 22 NYCRR 130-1.1[c][1-3]). In fact, Grandmother herself provided copies of some of the vitriolic correspondence sent via faxes to the Parents’ counsel, the Children’s Law Center and CFS, wherein she threatens the Parents to be punished with contempt for purportedly violating the Orders, and demands from Parents’ counsel immediate action. Contrary to Grandmother’s arguments, the Parents’ counsel responses to her faxes appear to be professional and respectful, perceptively reminding Grandmother:“I suggest that you also consider the long-term impact of your behavior on your family and its eventual effect on your grandson.* * * Threat after threat by you does nothing to create a positive and loving relationship with you grandson and is not in [the Child]‘s long-term best interests. I hope you understand that you should focus on the possible development of a supportive and long-term relationship with [the Child] and his Parents and not trying to scare others into doing what you want and when you want”In accordance with the foregoing, the Court denies Grandmother’s Motion in its entirety, but grants the Parents’ Cross Motion for costs and sanctions against Grandmother at a sum to be determined at a hearing or on papers following the conclusion of the best interests hearing. Counsel for the Parents must present and provide evidentiary proof of the costs and fees spent by them in litigating and answering Grandmother’s vexatious correspondence, telephone calls, motions and court appearances.It is also ordered that, given her history of vexatious litigation, Grandmother is hereby prohibited from filing any new writs, motions or petitions in the Family Court of New York State without approval of the presiding judge of the court in which the action or proceeding is to be filed. The foregoing constitutes the Decision and Order of this Court.ENTER:Dated: May 7, 2019Brooklyn, New YorkNOTICE:PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.Check applicable box:Order mailed on (specify date[s] and to whom mailed):Order received in court on (specify date[s] and to whom mailed):
