DECISION AND ORDER
Arthur F. Engoron, J.S.C.
In compliance with CPLR 2219(a), this Court states that the following papers, numbered 1 to 3, were used on this motion for 22 NYCRR Part 130 costs:
Moving Papers ......................................1
Opposition Papers ..................................2
Upon the foregoing papers, the motion is denied.
The instant motion compels this Court to address a perennial and thorny question: where to draw the line between mere discourtesy and sanctionable misconduct. Under current law and practice, the acts and omissions here at issue fall, fairly clearly, into the first category. However, the day may come when legislators or administrators or trial judges, on their own initiative and/or at the behest of litigators and litigants, move the goal posts, so to speak, and what is now acceptable will no longer be so.
The background facts are not significantly in dispute, and the Court will set them forth only as it finds them necessary (or at least relevant) to the decision. In or about June 2011 plaintiffs commenced the instant action for alleged rent overcharges. Issue was joined in or about September 2011. In a Decision and Order dated October 10, 2012 (Moving Exh. A), Justice Joan M. Kenney granted summary judgment in favor of plaintiffs on the issue of liability and directed an assessment of damages and a subsequent assessment of attorney's fees (although the parties appear to be assuming, as does this Court, that both of these assessments will commence on the same date and in essence be part of the same hearing) (collectively, "the
damages hearing"). On December 3, 2012 defendants perfected an appeal of this decision to the Appellate Division, First Department. On December 7, 2012 defendants moved the Appellate Division for a stay of the damages hearing. By Order dated January 10, 2013 the Appellate Division stayed the damages hearing, conditioned solely on defendants posting a $67, 449.19 undertaking.
In a January 11, 2013 e-mail (Moving Exh. E) plaintiffs' counsel asked defendants' counsel, "will your client be posting the undertaking required by the Court?" An hour later, defendants' counsel responded (id.), "We have not made that determination as of yet." (At oral argument on April 3, 2013, defendants' counsel stated that that response was true when made.)
On January 14, 2013, the parties attended a "blockbuster" pre-trial conference. According to plaintiffs' counsel (Moving Aff Tf 19), defendants' counsel "expressly advised that the defendants were not seeking to obtain the undertaking." According to defendants' counsel (Opposing Exh. 19), he "maintained that [defendants] had not yet made the determination as to whether they would be posting the undertaking."
Interestingly, defendants' counsel states (Opposing Aff.
¶ 21) as follows: "At no time did Plaintiffs' counsel request to be notified if the Defendants made the determination that they would seek an undertaking. I note that if Plaintiffs' counsel had made such a request, I would have advised him that such request would not be honored." As best as this ...