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In re Flanigan

Supreme Court of New York, Third Department

March 2, 2017

In the Matter of THOMAS FLANIGAN, Petitioner,
BONNIE SMYTH, Respondent. PAUL W. VAN RYN et al., Appellants.

          Calendar Date: January 20, 2017

          Paul W.Van Ryn, Delmar, appellant pro se.

          Linda A. Mandel Clemente, East Greenbush, appellant pro se.

          Sandra M. Colatosti, Albany, for respondent.

          Before: Garry, J.P., Egan Jr., Devine, Clark and Aarons, JJ.


          Egan Jr., J.

         Appeal, by permission, from an order of the Family Court of Albany County (M. Walsh, J.), entered October 28, 2015, which imposed monetary sanctions against Linda A. Mandel Clemente and Paul W.Van Ryn.

         This appeal has its genesis in a dispute between petitioner (hereinafter the father) and respondent (hereinafter the mother) concerning custody of and visitation with their son (born in 2000). By order entered April 24, 2012, the mother was awarded sole custody of the child and the father was granted an initial visit with the child - to be followed by "such other and further visits as the parents can mutually agree taking into consideration the wishes of their child." Difficulties between the mother and the father persisted, further orders were issued and additional petitions were filed, culminating in a hearing that began on November 15, 2013 and continued on various dates throughout 2014. In conjunction therewith, the father was represented by two separate attorneys - Linda A. Mandel Clemente and Paul W.Van Ryn. [1]

         Insofar as is relevant here, Family Court subsequently advised the parties via fax that it needed to reschedule the hearing dates planned for January 23, 2015 and January 28, 2015. Dissatisfied with the adjourned hearing dates and the manner in which Family Court attempted to reschedule the hearing, Mandel Clemente moved to recuse Family Court, a motion in which Van Ryn subsequently joined, contending that the court engaged in ex parte communications with opposing counsel, refused to schedule a continuation of the hearing in an expeditious manner and demonstrated bias against the father as a litigant and against Mandel Clemente as an attorney. By order entered May 15, 2015, Family Court, among other things, denied the father's recusal motion and directed his attorneys to show cause why they should not be sanctioned for engaging in frivolous conduct. The father's subsequent motion for, among other things, renewal was denied, and a sanctions hearing was scheduled for August 31, 2015. At the conclusion thereof, Family Court found that the father's attorneys had engaged in sanctionable conduct and, by order entered October 28, 2015, sua sponte sanctioned Mandel Clemente and Van Ryn $2, 500 each for engaging in frivolous conduct, i.e., bringing the baseless recusal motion, within the meaning of 22 NYCRR 130-1.1. The father's attorneys now appeal by permission of this Court. [2]

         A court, in its discretion, may impose financial sanctions upon a party or an attorney who engages in frivolous conduct within the meaning of 22 NYCRR 130-1.1 (see Tso-Horiuchi v Horiuchi, 122 A.D.3d 918, 918 [2014]; Navin v Mosquera, 30 A.D.3d 883, 883 [2006]; 22 NYCRR 130-1.1 [a]). To that end, conduct is deemed frivolous if "(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" (22 NYCRR 130-1.1 [c]; accord Tso-Horiuchi v Horiuchi, 122 A.D.3d at 883). "Sanctions may be imposed either upon a party's motion or 'upon the court's own initiative, after a reasonable opportunity to be heard'" (Shields v Carbone, 99 A.D.3d 1100, 1101 [2012], quoting 22 NYCRR 130-1.1 [d]). "In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues[, ] the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (22 NYCRR 130-1.1 [c]). To avoid the imposition of sanctions, the conduct at issue must, at the very least, "have a good faith basis" (Tso-Houiuchi v Horiuchi, 122 A.D.3d at 918 [internal quotation marks and citation omitted]). The imposition of sanctions is a matter committed to the court's sound discretion and, absent an abuse thereof, will not be disturbed (see De Ruzzio v De Ruzzio, 287 A.D.2d 896, 896 [2001]; McCue v McCue, 225 A.D.2d 975, 977 [1996]). Such sanctions may be imposed, however, "only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate" (22 NYCRR 130-1.2; see Matter of Village of Saranac Lake, 64 A.D.3d 958, 961 [2009]; Matter of Schermerhorn v Quinette, 28 A.D.3d 822, 823 [2006]).

         Here, there is no dispute that Family Court placed the father's attorneys on notice of the conduct at issue and, further, that the father's attorneys were afforded an opportunity to be heard at the ensuing sanctions hearing. There also is no question that, following the conclusion of that hearing, Family Court rendered a written decision and order satisfying the requirements of 22 NYCRR 130-1.2. Hence, the issue distills to whether Family Court abused its discretion in sanctioning the father's attorneys. To our analysis, the answer to that inquiry is no.

         The frivolous conduct upon which sanctions ultimately were imposed here originated in the context of the father's motion to recuse Family Court from presiding over the underlying custody and visitation dispute, wherein the father's attorneys alleged that Family Court engaged in impermissible ex parte communications with opposing counsel, encouraged opposing counsel to violate the Rules of Professional Conduct (22 NYCRR 1200.0) and demonstrated bias against both Mandel Clemente (as a "female attorney") and the father (as an "elderly male") by treating Mandel Clemente in a dismissive fashion and refusing to expeditiously reschedule certain hearing dates. Family Court deemed these "factually baseless assertions" to be both material and false statements (see 22 NYCRR 130-1.1 [c] [3]) that, in turn, "were undertaken for the purpose of harassing and impugning the integrity of the [c]ourt" and only served to further delay an already protracted proceeding. We agree.

         Family Court engaged in no prohibited ex parte communications with anyone. The allegations made by the father's attorneys in this regard stem from a January 16, 2015 fax from Family Court to each of the four attorneys involved - Mandel Clemente, Van Ryn, counsel for the mother and the attorney for the child - advising of the need to reschedule the January 2015 hearing dates, proposing four potential hearing dates in February 2015 and asking that counsel respond - via return fax - as to their availability. Counsel for the mother and the attorney for child responded to Family Court as instructed, but neglected to copy the father's attorneys on their respective replies.

         Contrary to the arguments made by the father's attorneys, nothing on the face of Family Court's January 2015 fax solicited or importuned an ex parte response by counsel or otherwise encouraged counsel to violate the Rules of Professional Conduct (22 NYCRR 1200.0). Furthermore, although the responses sent to Family Court by the mother's attorney and the attorney for the child indeed constituted ex parte communications by them (not the court), such communications were made solely for scheduling purposes. Accordingly, no impermissible ex parte communications occurred (see Rules of ...

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