Upon the E-file document list numbered 435 to 453 read on the application of plaintiff for an order striking the pleadings of defendants Todd E. Freed and Edith Webster Freed, granting a default judgment to plaintiff, and awarding sanctions to plaintiff and all the prior proceedings heretofore had herein; it is ORDERED that the application by plaintiff Ernest Wickham Case for an Order striking the Answer of the captioned defendants Todd E. Freed and Edith Webster-Freed, granting plaintiff a judgment by default, awarding sanctions to the plaintiff in the sum of $100,000.00, and alternatively permitting a letter dated July 26, 2021 to be admitted into evidence upon trial of this matter, is denied for the reasons set forth herein; and it is further ORDERED that plaintiff Ernest Wickham Case and his attorney David Fallon, Esq., and the defendants herein, Todd E. Freed and Edith Webster Freed and their attorneys, including Steven Angel, Esq., Anthony Pasca, Esq., and Amanda Star Frazer, Esq. all appear at and attend a hearing before this Court on the 6th day of June, 2022 at 2:30PM, Courtroom 229A, 1 Court Street, Riverhead, NY 11901, for the taking of testimony and introduction of documentary proofs under 22 NYCRR 130-1.1 in order to determine the amount of such costs and sanctions to be levied against David Fallon, Esq., the attorney for plaintiff, for conduct by Mr. Fallon deemed frivolous conduct in litigation under the Rules of the Chief Administrator of the Courts; and it is further ORDERED that at the hearing the attorneys for defendants Todd E. Freed and Edith Webster Freed should be prepared to offer bona fide copies of time accounting records and client invoices for legal services rendered in connection with opposing the instant motion and occasioned by the delay of the trial of this matter as well as all ancillary costs related to all of the same. Originally inhabited by the Corchaug indigenous people, bucolic Cutchogue on the north fork of Suffolk County is the situs of the captioned dispute between neighboring landowners. The Corchaug were a hearty and enterprising people. They were especially skilled in the creation of wampum, with whelk shells, the raw material of wampum, being in abundant supply locally. The Corchaug combined farming and fishing with the artistry and industry of wampum production throughout what is now Southold Township and the hamlet of Cutchogue. To ward off invading Narragansetts from present day Rhode Island, a fortification was erected by the Corchaugs in the 1600′s a short distance to the west of the land which is the subject of this lawsuit. With the arrival of European settlers in the 1620′s and 1630′s, Corchaug land was either taken by occupation and cultivation or by transactions the terms of which were not always clearly understood. Disputes among and between the indigenous Corchaugs and the newly arrived Europeans about the ownership and use of land inevitably followed suit. The abundance and natural beauty of the north fork continues to attract newcomers in the modern world. In certain respects, little has changed in Cutchogue in the intervening 400 years; the land is still fertile and productive, the coastlines are hauntingly beautiful, and disputes over the ownership and use of land continue. This matter before the Court is antedated by another lawsuit also brought in this Court involving two of the within defendants, Todd E. Freed and Edith Webster-Freed (“the Freeds”). In that action, captioned Todd Freed and Edith Freed v. Barbara Best and Zarko Svatovic, bearing index number 1247/2014 (the “prior lawsuit”), the Freed defendants were plaintiffs and co-defendants Zarko Svatovic (“Svatovic”) and Barbara Best (“Best”) were defendants. The prior lawsuit concerned the use and ownership of the same real property as in the instant matter, that is, a two-rod (33 foot) parcel with a separate tax map number (“Lot 12.2″) leading from New Suffolk Avenue to the beach on Great Peconic Bay. The prior lawsuit was tried before the Honorable Martha L. Luft, resulting in a jury verdict and a post-trial Decision and Order whereby a ten (10) foot area on the easterly boundary of Lot 12.2 for pedestrian access to Peconic Bay was deemed reasonable and convenient for the defendants, Best and Svatovic, and enjoining any other use of Lot 12.2 beyond that right of access and in derogation of the property rights of the Freeds as owners of Lot 12.2. The findings of the Court in the prior lawsuit include the following: Plaintiffs have shown that they are entitled to a permanent injunction. The credible evidence presented at trial shows that the defendants repeatedly acted in violation of and interference with plaintiffs’ rights as owners of Lot 12.2. Indeed, the defendants do not even dispute most of the violative actions, such as wandering outside of the path designated by the plaintiffs for ingress and egress from Peconic Bay, repeatedly leaving objects such as broken beach chairs, some of which were purposefully coated with molasses or motor oil to make removal difficult and unpleasant, on plaintiffs’ property, by inserting wooden stakes attached by string on plaintiffs’ property to identify a larger area over which defendants claimed the right to pass, and by defendant Svatovic yelling obscenities in front of plaintiffs’ children. Both Best and Svatovic were held in contempt by the Court for violating a temporary restraining order. Both were fined and Svatovic was sentenced to 30 days in jail, with the sentence held in suspense. Previous to their pro se appearance at trial before Judge Luft, Best and Svatovic had been represented by Fallon & Fallon of Sayville, New York. Advertence to the 16 decisions on motions made in the prior matter posted on WebCivil Supreme indicates that the attorney representation terminated at the end of 2016 or beginning of 2017. David Fallon, Esq., of Sayville, New York now represents the plaintiff in the present matter, Ernest Wickham Case (“Case”), who is the moving party on the application presently before the Court. There is no dispute that Mr. Fallon represented Best and Svatovic in the prior lawsuit; he spoke openly about it before the Court and opposing counsel in the days leading up to his within “emergency application.” The underlying matter at bar, commenced pursuant to New York Real Property Actions and Proceedings Law Article 15, first seeks declaratory relief voiding deeds recorded in the office of the Suffolk County Clerk on behalf of the Freeds, and further declarations that the Freeds and their successors be forever barred from claiming an interest in or right of use in Lot 12.2, and lastly a determination that “the heirs of Wickham Case” are the owners of Lot 12.2. The present motion of plaintiff Case, is unsupported by facts or law and cannot be supported by any reasonable argument for a modification or extension of settled law. In addition, it is clear to the Court that there is a palpable need to prevent Mr. Fallon from engaging in additional frivolous conduct in this matter and in future matters. To begin, there is no legal basis to strike the Answer of the Freed Defendants and enter Judgment against them for a claimed or actual violation of Rule 4.2(a) Rules of Professional Conduct entitled “COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL” (22 NYCRR Section 1200).The Freeds cite to two First Department cases, Weintraub v. Philips, Nizer, Benjamin, Crim & Ballon, 172 AD2d 254, 568 NYS2d 84 (1st Dept 1991) and Kantor v. Bernstein, 225 AD2d 500, 640 NYS2d 40 (1st Dept 1996), which hold that there is no right of action for a violation of the Code of Professional Responsibility. The Court recognizes the persuasive authority of the First Department and the simple proposition that if there is no right of action, there can be no remedy. More importantly though, the Second Department has closely examined and ruled on the limits placed upon a Trial Justice in the Supreme Court in attempting to fashion a remedy or sanction as a response to a violation of the rules governing the conduct of attorneys. In Matter of Richard A. Brown v. Joel L. Blumenfeld, 103 AD3d 45, 957 NYS2d 171 (2d Dept 2012), the Court was confronted with a CPLR Article 78 petition in the nature of Prohibition. In Brown, the elected Queens County District Attorney (“DA” or “the DA”) named an acting Supreme Court Justice (“Judge” or “the Judge”) as a respondent in a special proceeding. The Judge was disturbed by a DA adopted program whereby Assistant District Attorneys (“ADA” or “ADAs”) sometimes together with investigators, interviewed arrestees on felony charges who were unrepresented and not yet the subject of formal criminal proceedings. In the prosecution of this one particular matter, a statement had been taken from an individual in custody, in accord with the adopted DA program. The Judge surmised that the statement was not at all voluntary, but in fact, had been coerced, through the programmatic approach of the DA to these interviews and the scripted statements made by ADAs to those under arrest. The arrestees were mirandized, preceded by a “preamble” as the Court called it; consisting of a series of statements set out by the DA. The Judge concluded that the preamble was “misleading and deceptive [and thus] violative of Rule 8.4 (c) of the Rules of Professional Conduct (Matter of Richard A. Brown v. Joel L. Blumenfeld, 103 AD3d at 53, 957 NYS2d 171 [2d Dept 2012]). The Judge did not report the conduct of the ADA to the Grievance Committee, but instead fashioned his own sanction in response to his determination that a violation of a rule of attorney conduct had occurred. The Judge made an Order precluding the introduction into evidence of the videotaped statement made by the arrestee / defendant at trial.The Judge relied upon Judiciary Law Section 90 which vests in the Supreme Court “power and control over attorneys and counselors-at-law” as the predicate for his sanction. The Second Department correctly observed that such power is “principally vested in the Appellate Divisions, which have the exclusive authority to conduct attorney disciplinary proceedings” (id. at 59, 957 NYS2d 171). The writ of prohibition was granted on the Article 78 Proceeding and the Judge was prevented from enforcing the Order of preclusion (id.). Similarly, in the matter at bar, even if the Court were persuaded that the Freeds had committed some breach of the ethical rules governing the conduct of attorneys (and that is not at all clear upon review of the opposition papers), such would not form the basis for the drastic relief sought including the entry of Judgment against the Freeds and a $100,000.00 sanction demanded in the instant motion by Case. Originally known as “the Supreme Court of Judicature” at its founding in the 17th century, the New York State Supreme Court is one of the oldest courts of legal and equitable jurisdiction in the United States. While the jurisdiction of the Court is quite broad, the holding in the Brown case demonstrates that it is not unlimited; which should have occurred to the plaintiff’s counsel Mr. Fallon 1) in the time intervening his Saturday trial preparation session with his client when revelations were made about contact between the Freeds and Case and his “emergency application” the following Monday and; 2) most certainly thereafter when he had retired to his law office to pen the instant motion on papers. Under Brown, which is good law in the Second Department, this Court is not empowered to grant the drastic relief and the sanctions sought on this motion. As a working lawyer engaged in litigation practice, Mr. Fallon should have known that before he set the chain of events in motion which led to this Order and Decision. The practice of law is a privilege and not a right. Licenses to practice law in New York are granted by the Appellate Divisions and can be suspended or revoked. The privilege carries with it certain obligations including adherence to the rules of conduct, deportment and effort in the rendition of legal services, and respect for the Court and opposing counsel. The Court concludes that Mr. Fallon proceeded recklessly in the context of this matter; his unrestrained rhetoric including wholly unfounded accusations of criminal conduct leveled against the Freeds as members of the bar. He likewise engaged in a pattern of conduct in litigation that does not comport with reasonable and accepted standards of attorney behavior. Attorneys for the Freeds raised the subject of Mr. Fallon’s behavior as worthy of sanctions in the context of their opposition papers; but restrained themselves from cross-moving for such relief. The Court has raised, sua sponte, the conduct of Mr. Fallon concerning the instant motion, with regard to levying sanctions and costs under Part 130 of the Rules of the Chief Administrator, under the authority of Kamen v. Diaz-Kamen, 40 AD3d 937, 837 NYS2d 666 (2d Dept 2007), Matter of Griffin v. Panzarin, 305 AD2d 601, 603, 759 NYS2d 745 (2d Dept 2003), Kelleher v. Mt. Kisco Medical Group, 264 AD2d 760, 761, 694 NYS2d 770 (2d Dept 1999) and Morrison v. Morrison, 246 AD2d 634, 667 NYS2d 312 (2d Dept 1998). The Court finds that the making of the instant motion to strike the Answer and enter Judgment in favor of the plaintiff, standing on its own, is reason enough to impose sanctions and costs on Mr. Fallon, because Mr. Fallon had not bothered to conduct sufficient legal research before making a motion that the Court was not empowered to grant. There remain however, two wholly separate bases for imposing sanctions and costs on Mr. Fallon including A) a frivolous request for the imposition of a monetary sanction against the Freeds, and also B) a pattern of frivolous conduct in the context of this matter. The Court does not divine, either in the papers on this motion or on the record from February 28, 2022 (the Freeds were present in the gallery of the courtroom during “the emergency application” of Mr. Fallon) any basis upon which to sanction the Freeds. Hence the making of the motion for the imposition of sanctions against the Freeds is deemed by the Court to be sanctionable. In Tercjak v. Tercjak, 49 AD3d 773 854 NYS2d 454 (2d Dept 2008), the Second Department upheld a Family Court Judge who had sanctioned counsel for making frivolous sanctions motions against the Law Guardian and opposing counsel. The Rule itself contemplates as much in clear statutory language: “Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section” (22 NYCRR 130-1.1[c][3]). The Second Department has likewise recognized that a continuing pattern of frivolous behavior leads to the imposition of sanctions (see Frink v. Gellerty & Cutler, P.C., 209 AD2d 664, 619 NYS2d 148 [2d Dept 1994], citing Matter of Minister, Elders & Deacons of Refm. Prot Dutch Church of City of NY v. 198 Broadway, 76 NY2d 411, 414, 559 NYS2d 866 [1990]). The Court concludes that Mr. Fallon has engaged in a pattern of frivolous conduct. The making of the instant motion was preceded by other motion practice which followed from litigation tactics to which Mr. Fallon resorted, including first a CPLR §3101(d) expert witness disclosure and then a judicial subpoena served on that same witness, Steven Spanburgh (“Spanburgh”). The expert witness disclosure bears the date January 29, 2019, and was accompanied by a copy of a June 12, 2012 letter from Spanburgh to Patricia More, Esq., (“The Spanburgh Letter”) who apparently was transaction counsel to the Freeds for residential premises in Cutchogue including Lot 12.2. According to the 2019 CPLR §3101(d) disclosure of the plaintiff, Spanburgh “worked in the title industry for many years searching titles and closing titles. Mr. Spanburgh has extensive knowledge as to real estate titles.” Within three single spaced pages, the Spanburgh letter utters the identity of various filed instruments in the land records of the Suffolk County Clerk and the Suffolk County Surrogate’s Court. Spanburgh concludes as follows “There may be many more heirs who are not accounted for and a bar claim action may be necessary to quiet title.” As the instant matter reached the Calendar Control Part, a motion in limine by Order to Show Cause was made by counsel for the Freeds to strike the CPLR §3101(d) disclosure pertaining to Spanburgh and to preclude Spanburgh from offering opinion testimony at trial. The motion was supported, inter alia, by Spanburgh’s own affidavit dated January 19, 2022, wherein he stated that he just “learned of plaintiff counsel’s CPLR §3101(d) disclosure.” Spanburgh related that he was never retained by plaintiff’s counsel as an expert; continuing that he not only had never before acted as an expert but, remarkably, that he does not consider himself to be an expert. The motion was fully briefed and submitted to the undersigned as trial Justice with a jury of six and two alternates having been sworn and with trial to commence in short order. Plaintiff Case’s papers included citations to authority not at all on point with the instant facts (treating physician in a medical malpractice action who participated in the litigation, and a “pothole repair expert” offered as an expert by the adverse party). Thus, what initially might have been credited as a creative argument in favor of an extension or modification of settled law, quickly devolved into something quite less than that. The motion in limine was granted and Spanburgh was precluded from offering opinion testimony at trial. By way of a subpoena dated February 2, 2022 and served thereafter on Spanburgh, plaintiff’s counsel sought to take Spanburgh’s testimony not as an expert, but as a fact witness “concerning the letters you wrote for advocate’s abstract related to property located in Cutchogue, New York, known as SCTM 1000-116-6-12.2″ (Lot 12.2). The hackneyed colloquialism “by hook or by crook” comes to mind. Another motion by Order to Show Cause followed; this time by Spanburgh’s attorney. The motion was supported by an affidavit from Spanburgh and an attorney affirmation which included citation to applicable case law to support granting a motion to quash a subpoena where the information sought thereby is irrelevant. The 2012 Spanburgh letter to attorney Patricia Moore lists documents which are public records, makes notations concerning documents not found in the public record and posits opinions about the same; none of which is relevant to the ultimate determination of a jury on the identity of the owner(s) in fee title Lot 12.2. The motion was granted, and the subpoena was quashed, there being nothing about the 2012 Spanburgh Letter, to be introduced through Spanburgh; now offered as a lay witness instead of an expert, which would be probative or helpful to the jury in the determining legal title to Lot 12.2. It is upon this record of prior proceedings on this matter that Mr. Fallon proceeded on February 28, 2022, in open court, to make what he described as “an emergency application” concerning communications from the Freeds to his client Case, including a letter dated July 26, 2021 signed by the Freeds bearing the heading “Confidential: For Settlement Purposes Only.” This letter contains terms of a proffered settlement of the instant matter, and also indicates that Case had made disclosures about the conduct of his attorney to the Freeds. The letter additionally expresses the belief of the Freeds that Case’s attorney was motivated by a desire to generate legal fee billing which conflicted with a prospective settlement of the matter. Mr. Fallon continued on the oral application that he had reported these communications to the Public Integrity Bureau of the Suffolk County District Attorney, positing that the communications complained of could constitute “bribery of a witness”, “tampering with the witness” or “coercion”. Mr. Fallon further maintained at that time that the Freeds’ behavior was sanctionable1 and that the relief sought before the Court was for the Freeds’ pleadings to be “strucken” (sic). As previously observed, the fact, especially, that he didn’t rethink his position after a sober and thorough search of the applicable rules, statutes and cases upon thirty days intervening the February 28, 2022 court appearance and the filing of the motion papers, leaves Mr. Fallon in the unenviable position he is now in. With respect to the July 26, 2021 settlement letter, there is no reason to deviate from the strictures of CPLR Section 4547, and that alternative relief is denied as well. The foregoing constitutes the decision and Order of the Court. Dated: April 29, 2022
