Preview
FILED: KINGS COUNTY CLERK 01/17/2023 03:17 PM INDEX NO. 521209/2021
NYSCEF TribecaNO.
DOC. Equity
79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023
997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U)
For Respondent:
Richard P. Savitt, Esq. (self-represented)
Savitt Law Firm, PLLC
460 West 34th Street
Unreported Disposition New York, NY 10001
44 Misc.3d 1201(A), 997 N.Y.S.2d 101 (Table), 2014 WL
2977372 (N.Y.City Civ.Ct.), 2014 N.Y. Slip Op. 50956(U) OPINION OF THE COURT
This opinion is uncorrected and will not be James E. d'Auguste, J.
published in the printed Official Reports.
Respondent Richard Savitt moves, pursuant to CPLR
5015(a), to vacate the order of the Hon. Jennifer G. Schecter,
*1 Tribeca Equity Partners
dated August 16, 2013, which, upon his default, denied his
L.P., Petitioner-Landlord, motion seeking to vacate a money judgment entered pursuant
v. to a two-attorney so-ordered stipulation of settlement dated
October 19, 2006. Petitioner Tribeca Equity Partners L.P.
Richard Savitt, Respondent-Tenant.
(“Tribeca”) cross-moves against Savitt to recover, as the
prevailing party, its attorney's fees as permitted by the parties'
L & T 87923/06
Civil Court of the City of New York, New York County lease. The Court also determines, after a hearing,1 its own sua
Decided on June 24, 2014 sponte motion on the issue of potentially imposing sanctions
against Savitt. For the reasons set forth below, Savitt's motion
*2 to vacate is denied, Tribeca's cross-motion for attorneys'
CITE TITLE AS: Tribeca fees is granted, and, upon the Court's own motion, sanctions
Equity Partners L.P. v Savitt are imposed against Savitt.
ABSTRACT
Procedural and Factual History
Judgments A.The Proceedings in 2006
Default Judgment
Vacatur On August 29, 2006, Tribeca commenced this nonpayment
proceeding against Savitt, an attorney, and Gary Luciani
(misspelled in the complaint with an “o” instead of a final
“i”), his guarantor on the lease. On September 18, 2006, Savitt
Attorney and Client
personally fileda self-represented answer to the petition.
Frivolous Conduct
Exh. 12a, Savitt Aff., dated December 3, 2012, at ¶8. In his
Sua Sponte Sanctions Motion
answer, Savitt claimed that he did not owe any rental arrears.
Answer ¶1. He argued that rent should have been charged
to his American Express card, which Tribeca had on file.
Tribeca Equity Partners L.P. v Savitt, 2014 NY Slip Id. Apparently relying on Luciani's name being misspelled,
Op 50956(U). Judgments—Default Judgment—Vacatur. Savitt also asserted in his answer that: “Defendant is unaware
Attorney and Client—Frivolous Conduct—Sua Sponte of anyone by the name of Gary Luciano' and has no idea why
Sanctions Motion. (Civ Ct, NY County, June 24, 2014, his name appears on the complaint.” Answer ¶6.
d'Auguste, J.)
On September 27, 2006, a conference was scheduled in
Housing Court (per the court file jacket), at which petitioner's
APPEARANCES OF COUNSEL counsel and Savitt allegedly appeared, and the matter was
For Petitioner: adjourned for a trial to be conducted on October 19, 2006.2 On
Todd Nahins, Esq. the adjourn date, Marion Mishkin, an attorney, appeared on
Borah Goldstein Alschuler Nahins & Goidel PC Savitt's behalf. A two-attorney stipulation of settlement was
377 Broadway executed and then so-ordered by the Hon. David B. Cohen.
New York, NY 10013
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DOC. Equity
79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023
997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U)
Exh. 3, so-ordered stipulation. The agreement provided for reply affirmation, Savitt attached various submissions he
a possessory judgment with a stayed warrant of eviction, a made against Mishkin with the Departmental Disciplinary
money judgment that was subject to Savitt's ability to submit Committee for the First Judicial Department (“Departmental
proof demonstrating that paid the sued upon back rent, and Disciplinary Committee”). Savitt Reply Aff., dated June 4,
Luciani's removal from this proceeding as a respondent. Id. 2013, Exhs. A-E. Tribeca cross-moved for the imposition of
attorneys' fees as allegedly provided for in the parties' lease.
B.Savitt's Motion to Vacate the 2006 Judgment and the The motion was returnable on June 11, 2013. On the motion's
January 18, 2013 Decision initial return date, Judge Samuels indicated that she would
conduct an evidentiary hearing relating to Savitt's contention
On December 3, 2012, more than six years afterthe so- that Mishkin was a rogue attorney. See Interim Order dated
ordered stipulation of settlement was signed and judgments June 11, 2013. She also directed Savitt to offer proof that
entered, Savitt moved to vacate them. Savitt did not submit he paid his rent for the time period covering August 2006
an affidavit in support of his motion; rather, he submitted an through October 2006. Id. In addition, Tribeca was directed to
affirmation. Savitt's ground for seeking relief, as articulated in
produce documents between Mishkin and Tribeca or Tribeca's
his affirmation, was that Mishkin, unidentified in the motion, attorneys. Id. Finally, Judge Samuels explained in her order
was essentially a “rogue attorney” who appeared on October that she expected Savitt to subpoena Mishkin for the hearing,
19, 2006 without his knowledge and who settledthe case which was set for July 23, 2013. Id.
without his consent. Savitt claimed that he had orally agreed
with an unidentified representative of Tribeca to break the After the June 11 court appearance, Tribeca submitted an
remaining term of the lease. Exh. 12a at ¶13. He further affidavit from a representative of building management
claimed that “[t]he parties agreed there would be no money attesting that neither Tribeca nor its owner had hired Mishkin
due and owing to either party subsequent to Savitt leaving and that the companies had never communicated with her.
the premises.” Id. Despite claiming in his answer that rent Dennis Davies Aff., sworn to July 26, 2013, at ¶¶ 2-3.
was automatically charged to his American Express card, Absent from the court filewas any proof, as directed by
Savitt did not attach any proof to his motion supporting his Judge Samuels, that Savitt paid rent for the three months
contention that, at the time of his departure, there were no constituting the money judgment entered against him. Savitt
rental arrears. did serve a subpoena on Mishkin; that resulted in a motion
to quash on the ground, among others, that the subpoena was
On January 18, 2013, this Court (Samuels, J.) issued a defective because it was improperly signed by Savitt, a party
decision and order denying Savitt's motion to vacate the to the litigation. Mishkin attached to her motion a decision
money judgment entered in 2006. In denying the motion, issued by the Hon. Marilyn Shafer, which criticized Savitt for
Judge Samuels *3 noted that Savitt provided no explanation improperly using affirmations despite being precluded from
about why, after having answered the petition,he did not doing so because he was a party. Exh. 18, Savitt v. Epinard
attend the court conference at which Mishkin, the alleged LLC, 2004 NY Slip Op. 30366(U), 2004 WL 6339870 (Sup.
rogue attorney, appeared and settled the case on his behalf. Ct., NY County Nov. 30, 2004) (Shafer, J.).
Judge Samuels also concluded that Savitt lacked a plausible
explanation for not inquiring about the litigation's status for On July 23, 2013, the return date for the motions,
over six years after having personally answered the petition. Savitt withdrew his subpoena because it was defective. Tr.
24:14-26:22 (Jul. 23, 2013). Therefore, Judge Samuels issued
C.Savitt's Motion to Renew and Reargue the January 18, 2013 an order granting the motion to quash without prejudice to a
Decision and Order new subpoena being properly served on Mishkin. Order dated
July 23, 2013. The matter was adjourned for an evidentiary
On April 15, 2013, Savitt served a motion to renew hearing to be conducted on August 15, 2013. Id.; Tr. 49:13
and reargue the January 18, 2013 decision and order. (Jul. 23, 2013). A review of the transcript of the proceedings
As with his original motion, Savitt failed to submit an for July 23 reveals a surprising fact:Mishkin submitted
affidavit in support of his motion and again relied upon telephone records documenting calls that she had with Savitt
his affirmation. Savitt disclosed in his motion papers on the same day that the case was settled in 2006. Tr.
that he filed an ethics complaint against Mishkin. Exh. 12:15-16 (Jul., 23, 2013). Savitt did not explain how Mishkin
13, Savitt Aff., dated April 15, 2013, at ¶23. In his could have records documenting *4 telephone calls if, as
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 2
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DOC. Equity
79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023
997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U)
he claimed, he had never spoken to her. Id. at Tr. 12:6-16.3 absolutely wrong not based on fact and based on your biases,
Since exhibits attached to Mishkin's motion, such as her unfair, unjustified biases against me personally, based upon
phone records, were missing from the court file, this Court the statements you just made again, which I am requesting
(d'Auguste, J.) issued an order on February 10, 2014 directing that you recuse yourself, because I do not think you can be
Mishkin to reproduce her submissions in this action. fair and impartial in this case . . . .
The undersigned's examination of the July 23, 2013 transcript *5 Id. at Tr. 22:3-17. Savitt incorrectly stated the year of the
of proceedings also reveal an unusual exchange in which case's index number, which is Savitt v. Daniel Express Comm.,
Savitt claimed that he did not receive notice of any of the Inc., Index No. CV-9762/11 (Civ. Ct., NY County).
court dates. Id. at Tr. 20:19, Tr. 21:4-5 (Jul. 23, 2013). Judge
Samuels then discussed standard Housing Court procedure As discussed below, court records reveal Savitt was in fact
that provides for the automatic scheduling of a court date a respondent in two Housing Court cases prior to the instant
when an answer is filed. This statement by Judge Samuels litigation; in both cases, he was sued for nonpayment by his
resulted in Savitt's making an affirmative representation that landlord for his tenancy immediately preceding his tenancy
he had never previously been in Housing Court: with Tribeca. The actions were both captioned Bowery at
Spring Partners, LP v. Savitt, with New York County Civil
THE COURT: . . . Cases don't disappear or evaporate. If you Court Index Nos. L & T 096767/03 (Spring Partners I) and L
[are] in housing, they discontinue, are dismissed or go [to] & T 82369/04 (Spring Partners II). The proceeding in Spring
trial. They are settled. They don't go in purgatory where it Partners II was settled pursuant to a stipulation of settlement
doesn't go anywhere. As soon as you have an answer, you get dated October 29, 2004, which was so-ordered by the Hon.
a court date. That is the way Housing Court works. Michael J. Danziger. Exh. 11b, so-ordered stipulation in
Spring Partners II. A warrant of eviction, signed by the Hon.
MR. SAVITT: I have, to my recollection, I have never been in Ernest J. Cavallo (Exh. 11a, judgment in Spring Partners II),
Housing Court in New York before this case. was stayed until December 31, 2004 (Exh. 11b), which was
the day before Savitt took possession of the subject premises
THE COURT: To my recollection? at issue in this litigation. Exh. 2, lease dated December 23,
2004. Savitt also agreed to the entry of a stayed money
MR. SAVITT: To my recollection. judgment (Exh. 11b), which, as discussed below, Savitt
sought to vacate three years after it was entered.4 Savitt's
THE COURT: To my recollection. . . . When you say it is to application to vacate the money judgment entered in Spring
my recollection . . . it gives you an out, gives you the door Partners II was denied by the Hon. Michelle D. Schreiber
open for you to backpedal. . . . I don't think I would forget a because it was at odds with the terms of the settlement:
Housing Court case. I don't think I would forget how many “Decline to sign w/o prejudice. Not clear what relief is sought.
times I appeared in Housing Court. Stip. of 10/4/04 included $ judgment.” Spring Partners II,
supra, (Civ. Ct., NY County Jan. 2, 2008) (Schreiber, J.).
Id. at Tr. 21:10-22:2 (emphasis added). Upon being pressed
on his “recollection” caveat, Savitt changed the topic from his On August 15, 2013, the date to which the motion and cross-
affirmative representation by demanding that Judge Samuels motion were adjourned, the proceedings were repeatedly
recuse herself: interrupted by Savitt'sinappropriate statements directed at
Judge Samuels, including assertions that she “made false
Your Honor, I am going to request again that you recuse statements about the record, about the documents.” Tr.
yourself. I have a copy of the transcript on another Savitt 7:17-18 (Aug. 15, 2013). Judge Samuels noted that Savitt
case, index number 009762/12. You made many -- let me put demanded her recusal only after she ruled against him. Id.
this on the record, you made many false statements about at Tr. 7:4-8 (“[I]fI am biased against you, I should be
the facts of that case that can be proven by documentary recusing myself in all of your matters. You did not ask me
evidence. I have a copy of the transcript. I will be filing a to recuse myself in this matter when it was submitted to me
motion after we leave here today, but I am requesting that in Special Term on that day.”). Judge Samuels did eventually
you recuse yourself, because you have unfair, undue bias recuse herself, but for reasons unrelated to Savitt's claim of
against me based upon your findings in this case which were bias; the recusal was because she was not handling cases
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 3
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DOC. Equity
79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023
997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U)
involving The Related Companies L.P. (“Related”), which,
she learned during colloquy, has an ownership interest in On the issue of his excuse for not appearing in court as
Tribeca. Id. at Tr. 19:20-20:10; see also Todd Nahins Aff., directed by Judge Samuels, Savittclaimed in his unsworn
dated October 8, 2013, at ¶16. The evidentiary hearing was submission that “I was not in NYC on the morning of August
adjourned until the following day, August 16, 2013. The judge 16, 2013 and could NOT attend the hearing.” Id. at ¶53
assigned to Special Term I would also, according to Judge (emphasis in original).He also stated that “I explained to
Samuels' directive, conduct a de novo review of the original Judge Samuels, that I was NOT available on August 16, 2013,
decision.5 Tr. 21:7-16 (Aug. 15, 2013); see also Recusal that I had two (2) clients in from Charlotte, N.C.” Id. at ¶51
Order dated August 15, 2013. Although Savitt requested that (emphasis in original). As will be discussed below, a transcript
Judge Samuels adjourn the matter until the following week of the August 15 court appearance reveals that Savitt neither
because he had “some people coming in *6 from out of informed Judge Samuels that he was unavailable on August
town,” his application was denied. Tr. 20:9-10 (Aug. 15, 16 nor explained that he had clients coming in from Charlotte,
2013). The court appearance ended with Savitt's confirming North Carolina. In other words, the purported excuse that
that the motions would be heard the next day in Special Term Savitt made, and which he criticized Judge Samuels for
I. Id. at Tr. 21:17-20. rejecting, was a fallacy.
On August 16, 2013, the matter was called in Special The return date of Savitt's new motion was scheduled for
Term I, where Judge Schecter was presiding. Tribeca's December 3, 2013. Counsel for *7 Tribeca appeared, but
counsel appeared for the hearing, but Savitt failed to appear. Savitt did not. Because Tribeca's cross-motion essentially
Savitt never notified Tribeca's counsel that he would not sought summary judgment on the issue of petitioner's
be appearing. Tr. 119:7-15 (Feb. 18, 2013). He also did entitlement to attorneys' fees, the Court took the matter on
not submit an affidavit of actual engagement nor any other submission to perform a closer review of the application for
document notifying the Court that he would not be appearing relief. See Liberty Taxi Mgt., Inc. v. Gincherman, 32 AD3d
that day. Id. at Tr. 117:24-118:22. Upon Savitt'sfailure 276, 277 (1st Dep't 2006), citing, Vermont Teddy Bear Co. v.
to appear, Judge Schecter issued an order denying Savitt's 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (“[T]he
motion on default. Exh. 14, Order dated August 16, 2013. failure to oppose a motion for summary judgment alone does
Tribeca's cross-motion for attorneys' fees was apparently not justify the granting of summary judgment. Instead, the . . .
abandoned at that juncture with no decision being issued. court must still assess whether the moving party has fulfilled
its burden of demonstrating that there is no genuine issue of
D.Savitt's Motion to Vacate the August 16, 2013 Order material fact and is entitled to judgment as a matter of law.”).
On September 19, 2013, more than a month after defaulting, E.The February 18, 2014 Sanctions Hearing
Savitt served a motion to vacate Judge Schecter's August 16,
2013 order. While Savitt signed his September 19 notice of After reviewing the motion, as well as the cross-motion and
motion to vacate, he failed to sign and have notarized his court records, this Court concluded that Savitt's conduct may
have risen to the level of frivolity. The Court therefore sua
“affidavit” that he submitted in support of the motion.6 Exh. 4,
sponte placed the matter on its calendar to provide Savitt with
Unsworn Savitt Aff., dated September 19, 2013. Savitt, in his
the opportunity to address this Court's concerns:
defective motion papers, continued to unleash vitriol towards
seemly any person that has been involved in the litigation
The Court has under submission Respondent Richard Savitt's
against him, which includes Judge Samuels, Nahins, Davies,
motion to vacate an August 16, 2013 decision and order
and Mishkin. Id. at ¶¶20, 22, 23, 26, 28, 31, 35, 39, 40, 42,
(Schecter, J.)and Petitioner Tribeca Equity Partners L.P.'s
and 46. For instance, Savitt claimed that Judge Samuels “has
cross-motion, as a prevailing party, for the imposition
made other derogatory and false statements about me and my
of attorneys' fees. The Court is considering the possible
actions and behavior in the past.” Id. at ¶39. Savitt further
imposition of sanctions against Savitt in accordance with
stated that Judge Samuels refused to recuse herself “despite
22 N.Y.C.R.R. 130-1.1. Because the issue was not briefed,
the fact that I had a transcript[in Daniel Express] . .. ,
Savitt will be provided an opportunity to address the Court's
whereby Judge Samuels had made repeated false statements
concerns at a court conference to be held on February 18, 2014
ON THE RECORD, and was made aware of same.” Id. at ¶40
(emphasis in original).
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997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U)
in Special Term I (Room 325) at 9:30 a.m., which shall be we're not going to proceed with it until this is finished being
conducted on the record. heard.” Id. at Tr. 7:1-4. The Court followed up on Savitt's
statement by asking, “Are you tellingthe Court that you
Exh. 1, Order dated January 28, 2014. Having reviewed utilized a notice of motion as if it was a court order preventing
transcripts and the court file, this Court also determined that execution?” Id. at Tr. 7:5-7. At this point Savitt disclaimed any
certain relevant documents were missing from the court file. responsibility by asserting that he only provided the motion
This Court therefore issued an order “direct[ing] that, on or papers because “they asked . . . me for a copy.” Id. at Tr. 7:8-9.
before February 14, 2014, non-party Marion S. Mishkin shall Although the Court did not receive a satisfactory explanation
provide the Court with an additional complete copy of all of of how the execution on a money judgment was apparently
her submissions made to the Court in this matter.” Order dated stayed without a court order, the focus of the proceedings
February 10, 2014. shifted to other topics. Id. at 7:11-12.
On February 18, 2014, this Court began proceedings in The Court turned Savitt's attention to his primary contention
the sanctions hearing by marking the scheduling order as in support of his application: that a rogue attorney executed
Exhibit 1 and reading it into the record. Tr. 2:1-16 (Feb. 18, the so-ordered stipulation without his knowledge or consent.
2014). Nahins, petitioner's counsel, placed his appearance on To explain his failure to appear afterfiling an answer or
the record.7 Id. at 2:19-20. Thereafter, Savitt was sworn in inquiring about the status of the pending litigation,Savitt
because he would be answering this Court's questions under asserted that he orally settled the dispute with a representative
oath. Id. at 2:17-25. Having been apprised of the hearing by of Tribeca. The alleged oral agreement permitted Savitt to
the February 10, 2014 court order, Mishkin also appeared on break the remaining term of his lease with the landlord's
February 18 and was called upon to provide testimony under retaining his security deposit. Id. at Tr. 8:5-13. When pressed
oath. Savitt was provided the opportunity to cross-examine on his explanation, Savitt provided no details regarding
her. the circumstances by which he secured the alleged oral
settlement. He could not even identify the representative
The Court initiallyrequested that Savitt address his of Tribeca with whom he allegedly entered into the oral
submission of an “affidavit” that was not executed. Id. at Tr. agreement, except to admit, under questioning, that it was
4:3-9. In a rambling response, Savitt asserted that the copy in not petitioner's counsel. Id. at Tr. 8:16-21. Savitt also could
the Court's possession, which was marked as Exhibit 4, must not explain how he could ethically discuss the case with this
be a version he sent to City Marshal Martin A. Bienstock, who unidentified representative of Tribeca pursuant to then-DR
apparently had served an execution on Savitt relating to the 7-1048 when he knew that Tribeca was represented by counsel
money judgment. Id. at Tr. 5-1:13. Savitt never provided this in pending litigation against him. See Matter of Wehringer,
Court with an actual explanation for why the only copy in the 135 AD2d 279, 282 (1st Dep't 1988) (“Although he knew
Court's possession was not executed. Nor, during the hearing that [defendant] was represented by counsel he negotiated
or at any time thereafter, did Savitt provide this Court with an directly with her without permission from her attorneys and so
executed copy of the affidavit. violated DR 7-104(A)(1).”); see also Topic: No Contact Rule
As Applied to Lawyer Acting Pro Se and Lawyer Represented
Savitt's attempt to explain, without success, the absence of an Party; 2011 WL 7784089, NY Eth. Op. 879 (NY St. Bar.
executed copy of his affidavit on file with the Court raised Assn. Comm. Prof. Eth. Sep. 27, 2011) (noting that self-
a new issue: Savitt apparently secured a stay of execution of represented attorneys cannot ethically contact a represented
the money judgment without a court order. Id. at Tr. 6:17-19 party except in limited circumstances not present here).
(“that's [Marshal Bienstock's] internal number so they could
halt this execution of the wrongfully obtained judgment.”). Savitt was also unable to explain how such an oral settlement
Having been so advised of this de facto stay of execution, would be legally enforceable under CPLR 2104.9 Savitt
the Court asked, “Why would the execution be stayed upon claimed not to be aware of the language of CPLR 2104, *8
your motion? A notice of motion doesn't stay [execution of which this Court then read to him. Id.at Tr. 77:22-78:15.
a judgment].” Id. at Tr. 6:20-24. Savitt asserted in response His asserted ignorance of thisprocedural rule is suspect
that Marshal Bienstock ceased enforcement efforts because because Savitt's previous attempt to rely on an oral settlement
“[t]hey know that I'm an honest and ethical attorney and they was rejected by Judge Shafer in Epinard because it was
took me at my word that this was on going and they told me not in open court. See 2004 WL 6339870, at *3. Faced
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79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023
997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U)
with the conundrum of the absence of a writing, Savitt then refund took place afterthe action was filed.Tr. 37:14-16
baldly claimed that settlement documents must exist without (Mar. 18, 2014) (“The refund was given after the lawsuit was
identifying them: “I believe 100% there is documentation filed.”).Savitt'ssubpoenaed banking records revealed that
sitting at whatever, Tribeca Equity Partners.” Tr. 79:1-2 (Feb. on February 24, 2011, the $283.91 refund had been returned
18, 2014). Documents Tribeca produced after the hearing did to Savitt's bank account. On February 25, according to the
not contain any material discussing a potential agreement, clerk'sfile stamp on the summons, Savitt commenced his
much less memorializing one. Exh. 25. Savitt has never action against Daniel Express. CCA 400; see also CPLR 304;
produced anything supporting the existence of a settlement. Spodek v. New York State *9 Com'r of Taxation and Finance,
85 NY2d 760, 763-66 (1995). Savitt's complaint asserted
Nor, for that matter, could Savitt explain how he believed, to multiple causes of action each seeking $25,000.
the extent that this is his claim, that he could enter into an oral
agreement to waive outstanding rental arrears when his lease Daniel Express eventually sought summary judgment and
contained a standard prohibition against orally modifying sanctions. When the motion was first returnable, Savitt
lease terms, i.e., a no waiver provision. Exh. 2 at ¶¶16, 17, claimed to be unable to secure his own banking records
28. As would later be addressed on March 18, 2014, Savitt to document the refund's existence. Savitt Aff. in Daniel
was aware during the course of these proceedings thathe Express, dated August 13, 2012, at ¶20. On May 8, 2012,
could not have orally modified the terms of his lease after he Judge Samuels personally handwrote a subpoena for Savitt
unsuccessfully litigated that very issue in another action. See to serve on his own bank. Id. at ¶¶ 12, 17, 21, see also
Exh. 23a, Tosi v. Yorkshire Towers GP Co., LLC, Index No. Exh. 9, Decision and Order in Daniel Express, dated July
CV-013955/09 (Civ. Ct., NY County Apr. 2, 2013) (Reed, 20, 2012. On June 14, 2012, Savitt failed to appear for oral
J.) (holding that a standard form apartment lease containing argument of Daniel Express' motion. Exh. 9. In addition to
“no waiver” and general merger clauses require a writing dismissing Savitt's complaint, Judge Samuels also awarded
signed by the landlord to permit the early termination of a Daniel Express $8,250 in attorneys' fees. Id.
lease without penalty or a relinquishment of the tenant's rent
obligations). When Savitt moved to vacate his default, he stated in his
affirmation his reason for not appearing on June 14, 2012:
Next, the Court delved into Savitt'sdisrespectful behavior
toward Judge Samuels. Savitt remained unapologetic for On May 8, 2012, I relied on Judge Samuels writing that “No
making multiple accusations of misconduct directed at Judge appearance is required if records are sent to civil court NY,
Samuels. Tr. 25:11-26:11 (Feb. 18, 2014). Rather, Savitt 111 Centre St. NY, NY 10013 Rm. 225” and me [sic] until I
essentially wanted to litigate his perceived failings of Judge received the court decision dated July 20, 2012. I was waiting
Samuels in Daniel Express. The Court inquired about the to be notified of a future hearing date.
status of any appellate review of the decision, issued in
2012, that so bitterly aggrieved him. Id. at Tr. 43:3-6. Savitt Savitt Aff. in Daniel Express, dated August 13, 2012, at ¶21.
admitted that despite having filed a notice of appeal, he never During oral argument of Savitt's motion to vacate his default
perfected an appeal. Id. at Tr. 43:3-11. Despite the decision in that action,Savitt confirmed thatthe reason he did not
in Daniel Express being final, Savitt has apparently failed to appear was that the subpoena, which was addressed to non
pay the sanction imposed against him by Judge Samuels in party Citibank, stated that no appearance was necessary if the
that matter. During his testimony, Savitt exhibited absolutely records were produced:
no remorse for repeatedly being disrespectful to a judge.
MR. SAVITT: Because on May 8th Your Honor drafted - Your
Although irrelevant to Savitt's professional obligation to be Honor drafted a subpoena and asked me to serve it on Citibank
respectful of the judiciary, Daniel Express is discussed here because I have sent three letters to Citibank requesting
for background purposes. The facts of Daniel Express are records. . . . Your Honor in the subpoena specifically wrote
straightforward: On February 16, 2011, Savitt purchased and that it was - that the bank was to supply the record by May
returned a $321.18 cell phone. A refund was processed the 27th, but that no one needed to appear. The language is in the
same day minus a thirty-seven dollar ($37) charge allegedly document that you have. . . .
relating to a SIM card sold for use with the phone. Exh.
10c, settlement refund report. Savitt misrepresented that the THE COURT: On the subpoena it says that?
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79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023
997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U)
having been focused solely to Housing Court cases in which
MR. SAVITT: Not to appear. he was a party prior to the instant litigation. Id. at Tr. 24:17-20.
THE COURT: Who was the subpoena directed to? When this Court confronted Savitt with the documentary
evidence showing that,contrary to his assertion to Judge
MR. SAVITT: Citibank. Samuels, he had previously been in Housing Court, Savitt
justified his failure to recall the prior litigations because he
THE COURT: They are not to appear, if they supply the was, at the time, “practicing in Connecticut and New York.”
records. Are you thinking that was you not to appear? Id. at Tr. 36:18-24. Savitt's handling of cases in two states as
an attorney should have had little impact on his ability to recall
MR. SAVITT: Due [to] the fact I was unable to get the records, two lawsuits in which he was personally sued for not paying
yes. I thought Your Honor was waiting to [] get the record and rent, with the laterproceeding resultingin his departure,
tell us a date to appear. . . . pursuant to a stayed warrant of eviction, from the apartment
in which he resided before he lived in the apartment subject
Exh. 10a at Tr. 3:21-4:14 (Sep. 12, 2012), transcript of to the instant litigation. Exh. 11b, so-ordered stipulation in
proceedings in Daniel Express. Savitt admitted during Spring Partners II. Savitt was also required to make a future
colloquy that he had never inquired about the production of payment to satisfy a money judgment entered against him in
the subpoenaed bank records. Id. at Tr. 6:2-6. Spring Partners II pursuant to the stipulation he signed. Exh.
11a. Furthermore, Savitt unsuccessfully sought by order to
After hearing oral argument, the Court denied Savitt's motion show cause to vacate the money judgment he agreed to in
to vacate on the ground that *10 his proffered excuse for Spring Partners II three years after it had been entered; as
failing to appear was unreasonable: noted above, Savitt failed to disclose this application when
this Court inquired about the existence of any other attempt
[Savitt's] argument that he believed a directive addressed to to vacate judgments entered against him. Tr. 69:21-70:1 (Feb.
non-party Citibank, written on a subpoena to Citibank, was 18, 2014).
a directive to the litigants that they need not appear if the
records are provided, is not credible. Savitt also stood by his previous representation that he had
never previously spoken to Mishkin. In doing so, he was
Exh. 10b, Decision and Order in Daniel Express, dated unable to explain the six telephone calls he had with Mishkin,
December 17, 2012. Judge Samuels also found Savitt's as reflected in phone records, on the day the action settled.
assertion in his August 13, 2012 affirmation that “I have never The only explanation Savitt provides for the existence of
received a check or credit in the amount of $321.18 from the these phone calls is the highly implausible contention that
Defendants” to be “disingenuous,” given “that he did receive he believed that the phone calls were from Tribeca: “So,
a refund, even if it was not in the amount he sought.” Id. at 6. receiving phone calls from somebody representing whatever,
Tribeca Equity Partners, on that day stating that the case is
Savitt was then given the opportunity by this Court to correct resolved, the case is done, that I believe.” Tr. 81:5-8 (Feb.
the record relatingto his untruthful statement that he had 18, 2014); see also id. at Tr. 66:3-4 (“I said that I spoke to
never been involved in another Housing Court case prior to a representative of 105 Duane Street which I have always
the instant litigation.
With a second judge questioning the said, Your Honor”). Savitt was unable to give the Court any
veracity of his affirmative representation, Savitt modified his detail regarding the contents of the discussions that took place
earlier testimony, but he did not admit the existence of his during these *11 phone calls. Id. at Tr. 66:24-67:13.
earlier litigation. Instead, Savitt essentially doubled down on
the “recollection” escape hatch about which Judge Samuels Mishkin, on the other hand, was able to provide the Court
had previously challenged him. Tr. 21:16-22-2 (Jul. 23, 2013). with a detailed accounting of her authority to appear on
Savitt now represented that “I have no idea if I have ever Savitt's behalf and Savitt's approval of the terms of the
been in Housing Court or not.” Tr. 24:6-7 (Feb. 18, 2014). settlement. Mishkin testified that, consistent with her custom
When the Court inquired about the change in representations, for obtaining assignments, she received phone calls from
Savitt blithely responded: “That's my testimony now.” Id. at Samson Freundlich of Per Diem Services on the evening of
Tr. 24:13. Savitt refused to provide a definitive answer despite October 18, 2006 with the assignment to appear on Savitt's
© 2023 Thomson Reuters. No claim to original U.S. Governm
Preview
FILED: KINGS COUNTY CLERK 01/17/2023 03:17 PM INDEX NO. 521209/2021 NYSCEF TribecaNO. DOC. Equity 79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023 997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U) For Respondent: Richard P. Savitt, Esq. (self-represented) Savitt Law Firm, PLLC 460 West 34th Street Unreported Disposition New York, NY 10001 44 Misc.3d 1201(A), 997 N.Y.S.2d 101 (Table), 2014 WL 2977372 (N.Y.City Civ.Ct.), 2014 N.Y. Slip Op. 50956(U) OPINION OF THE COURT This opinion is uncorrected and will not be James E. d'Auguste, J. published in the printed Official Reports. Respondent Richard Savitt moves, pursuant to CPLR 5015(a), to vacate the order of the Hon. Jennifer G. Schecter, *1 Tribeca Equity Partners dated August 16, 2013, which, upon his default, denied his L.P., Petitioner-Landlord, motion seeking to vacate a money judgment entered pursuant v. to a two-attorney so-ordered stipulation of settlement dated October 19, 2006. Petitioner Tribeca Equity Partners L.P. Richard Savitt, Respondent-Tenant. (“Tribeca”) cross-moves against Savitt to recover, as the prevailing party, its attorney's fees as permitted by the parties' L & T 87923/06 Civil Court of the City of New York, New York County lease. The Court also determines, after a hearing,1 its own sua Decided on June 24, 2014 sponte motion on the issue of potentially imposing sanctions against Savitt. For the reasons set forth below, Savitt's motion *2 to vacate is denied, Tribeca's cross-motion for attorneys' CITE TITLE AS: Tribeca fees is granted, and, upon the Court's own motion, sanctions Equity Partners L.P. v Savitt are imposed against Savitt. ABSTRACT Procedural and Factual History Judgments A.The Proceedings in 2006 Default Judgment Vacatur On August 29, 2006, Tribeca commenced this nonpayment proceeding against Savitt, an attorney, and Gary Luciani (misspelled in the complaint with an “o” instead of a final “i”), his guarantor on the lease. On September 18, 2006, Savitt Attorney and Client personally fileda self-represented answer to the petition. Frivolous Conduct Exh. 12a, Savitt Aff., dated December 3, 2012, at ¶8. In his Sua Sponte Sanctions Motion answer, Savitt claimed that he did not owe any rental arrears. Answer ¶1. He argued that rent should have been charged to his American Express card, which Tribeca had on file. Tribeca Equity Partners L.P. v Savitt, 2014 NY Slip Id. Apparently relying on Luciani's name being misspelled, Op 50956(U). Judgments—Default Judgment—Vacatur. Savitt also asserted in his answer that: “Defendant is unaware Attorney and Client—Frivolous Conduct—Sua Sponte of anyone by the name of Gary Luciano' and has no idea why Sanctions Motion. (Civ Ct, NY County, June 24, 2014, his name appears on the complaint.” Answer ¶6. d'Auguste, J.) On September 27, 2006, a conference was scheduled in Housing Court (per the court file jacket), at which petitioner's APPEARANCES OF COUNSEL counsel and Savitt allegedly appeared, and the matter was For Petitioner: adjourned for a trial to be conducted on October 19, 2006.2 On Todd Nahins, Esq. the adjourn date, Marion Mishkin, an attorney, appeared on Borah Goldstein Alschuler Nahins & Goidel PC Savitt's behalf. A two-attorney stipulation of settlement was 377 Broadway executed and then so-ordered by the Hon. David B. Cohen. New York, NY 10013 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1 FILED: KINGS COUNTY CLERK 01/17/2023 03:17 PM INDEX NO. 521209/2021 NYSCEF TribecaNO. DOC. Equity 79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023 997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U) Exh. 3, so-ordered stipulation. The agreement provided for reply affirmation, Savitt attached various submissions he a possessory judgment with a stayed warrant of eviction, a made against Mishkin with the Departmental Disciplinary money judgment that was subject to Savitt's ability to submit Committee for the First Judicial Department (“Departmental proof demonstrating that paid the sued upon back rent, and Disciplinary Committee”). Savitt Reply Aff., dated June 4, Luciani's removal from this proceeding as a respondent. Id. 2013, Exhs. A-E. Tribeca cross-moved for the imposition of attorneys' fees as allegedly provided for in the parties' lease. B.Savitt's Motion to Vacate the 2006 Judgment and the The motion was returnable on June 11, 2013. On the motion's January 18, 2013 Decision initial return date, Judge Samuels indicated that she would conduct an evidentiary hearing relating to Savitt's contention On December 3, 2012, more than six years afterthe so- that Mishkin was a rogue attorney. See Interim Order dated ordered stipulation of settlement was signed and judgments June 11, 2013. She also directed Savitt to offer proof that entered, Savitt moved to vacate them. Savitt did not submit he paid his rent for the time period covering August 2006 an affidavit in support of his motion; rather, he submitted an through October 2006. Id. In addition, Tribeca was directed to affirmation. Savitt's ground for seeking relief, as articulated in produce documents between Mishkin and Tribeca or Tribeca's his affirmation, was that Mishkin, unidentified in the motion, attorneys. Id. Finally, Judge Samuels explained in her order was essentially a “rogue attorney” who appeared on October that she expected Savitt to subpoena Mishkin for the hearing, 19, 2006 without his knowledge and who settledthe case which was set for July 23, 2013. Id. without his consent. Savitt claimed that he had orally agreed with an unidentified representative of Tribeca to break the After the June 11 court appearance, Tribeca submitted an remaining term of the lease. Exh. 12a at ¶13. He further affidavit from a representative of building management claimed that “[t]he parties agreed there would be no money attesting that neither Tribeca nor its owner had hired Mishkin due and owing to either party subsequent to Savitt leaving and that the companies had never communicated with her. the premises.” Id. Despite claiming in his answer that rent Dennis Davies Aff., sworn to July 26, 2013, at ¶¶ 2-3. was automatically charged to his American Express card, Absent from the court filewas any proof, as directed by Savitt did not attach any proof to his motion supporting his Judge Samuels, that Savitt paid rent for the three months contention that, at the time of his departure, there were no constituting the money judgment entered against him. Savitt rental arrears. did serve a subpoena on Mishkin; that resulted in a motion to quash on the ground, among others, that the subpoena was On January 18, 2013, this Court (Samuels, J.) issued a defective because it was improperly signed by Savitt, a party decision and order denying Savitt's motion to vacate the to the litigation. Mishkin attached to her motion a decision money judgment entered in 2006. In denying the motion, issued by the Hon. Marilyn Shafer, which criticized Savitt for Judge Samuels *3 noted that Savitt provided no explanation improperly using affirmations despite being precluded from about why, after having answered the petition,he did not doing so because he was a party. Exh. 18, Savitt v. Epinard attend the court conference at which Mishkin, the alleged LLC, 2004 NY Slip Op. 30366(U), 2004 WL 6339870 (Sup. rogue attorney, appeared and settled the case on his behalf. Ct., NY County Nov. 30, 2004) (Shafer, J.). Judge Samuels also concluded that Savitt lacked a plausible explanation for not inquiring about the litigation's status for On July 23, 2013, the return date for the motions, over six years after having personally answered the petition. Savitt withdrew his subpoena because it was defective. Tr. 24:14-26:22 (Jul. 23, 2013). Therefore, Judge Samuels issued C.Savitt's Motion to Renew and Reargue the January 18, 2013 an order granting the motion to quash without prejudice to a Decision and Order new subpoena being properly served on Mishkin. Order dated July 23, 2013. The matter was adjourned for an evidentiary On April 15, 2013, Savitt served a motion to renew hearing to be conducted on August 15, 2013. Id.; Tr. 49:13 and reargue the January 18, 2013 decision and order. (Jul. 23, 2013). A review of the transcript of the proceedings As with his original motion, Savitt failed to submit an for July 23 reveals a surprising fact:Mishkin submitted affidavit in support of his motion and again relied upon telephone records documenting calls that she had with Savitt his affirmation. Savitt disclosed in his motion papers on the same day that the case was settled in 2006. Tr. that he filed an ethics complaint against Mishkin. Exh. 12:15-16 (Jul., 23, 2013). Savitt did not explain how Mishkin 13, Savitt Aff., dated April 15, 2013, at ¶23. In his could have records documenting *4 telephone calls if, as © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2 FILED: KINGS COUNTY CLERK 01/17/2023 03:17 PM INDEX NO. 521209/2021 NYSCEF TribecaNO. DOC. Equity 79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023 997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U) he claimed, he had never spoken to her. Id. at Tr. 12:6-16.3 absolutely wrong not based on fact and based on your biases, Since exhibits attached to Mishkin's motion, such as her unfair, unjustified biases against me personally, based upon phone records, were missing from the court file, this Court the statements you just made again, which I am requesting (d'Auguste, J.) issued an order on February 10, 2014 directing that you recuse yourself, because I do not think you can be Mishkin to reproduce her submissions in this action. fair and impartial in this case . . . . The undersigned's examination of the July 23, 2013 transcript *5 Id. at Tr. 22:3-17. Savitt incorrectly stated the year of the of proceedings also reveal an unusual exchange in which case's index number, which is Savitt v. Daniel Express Comm., Savitt claimed that he did not receive notice of any of the Inc., Index No. CV-9762/11 (Civ. Ct., NY County). court dates. Id. at Tr. 20:19, Tr. 21:4-5 (Jul. 23, 2013). Judge Samuels then discussed standard Housing Court procedure As discussed below, court records reveal Savitt was in fact that provides for the automatic scheduling of a court date a respondent in two Housing Court cases prior to the instant when an answer is filed. This statement by Judge Samuels litigation; in both cases, he was sued for nonpayment by his resulted in Savitt's making an affirmative representation that landlord for his tenancy immediately preceding his tenancy he had never previously been in Housing Court: with Tribeca. The actions were both captioned Bowery at Spring Partners, LP v. Savitt, with New York County Civil THE COURT: . . . Cases don't disappear or evaporate. If you Court Index Nos. L & T 096767/03 (Spring Partners I) and L [are] in housing, they discontinue, are dismissed or go [to] & T 82369/04 (Spring Partners II). The proceeding in Spring trial. They are settled. They don't go in purgatory where it Partners II was settled pursuant to a stipulation of settlement doesn't go anywhere. As soon as you have an answer, you get dated October 29, 2004, which was so-ordered by the Hon. a court date. That is the way Housing Court works. Michael J. Danziger. Exh. 11b, so-ordered stipulation in Spring Partners II. A warrant of eviction, signed by the Hon. MR. SAVITT: I have, to my recollection, I have never been in Ernest J. Cavallo (Exh. 11a, judgment in Spring Partners II), Housing Court in New York before this case. was stayed until December 31, 2004 (Exh. 11b), which was the day before Savitt took possession of the subject premises THE COURT: To my recollection? at issue in this litigation. Exh. 2, lease dated December 23, 2004. Savitt also agreed to the entry of a stayed money MR. SAVITT: To my recollection. judgment (Exh. 11b), which, as discussed below, Savitt sought to vacate three years after it was entered.4 Savitt's THE COURT: To my recollection. . . . When you say it is to application to vacate the money judgment entered in Spring my recollection . . . it gives you an out, gives you the door Partners II was denied by the Hon. Michelle D. Schreiber open for you to backpedal. . . . I don't think I would forget a because it was at odds with the terms of the settlement: Housing Court case. I don't think I would forget how many “Decline to sign w/o prejudice. Not clear what relief is sought. times I appeared in Housing Court. Stip. of 10/4/04 included $ judgment.” Spring Partners II, supra, (Civ. Ct., NY County Jan. 2, 2008) (Schreiber, J.). Id. at Tr. 21:10-22:2 (emphasis added). Upon being pressed on his “recollection” caveat, Savitt changed the topic from his On August 15, 2013, the date to which the motion and cross- affirmative representation by demanding that Judge Samuels motion were adjourned, the proceedings were repeatedly recuse herself: interrupted by Savitt'sinappropriate statements directed at Judge Samuels, including assertions that she “made false Your Honor, I am going to request again that you recuse statements about the record, about the documents.” Tr. yourself. I have a copy of the transcript on another Savitt 7:17-18 (Aug. 15, 2013). Judge Samuels noted that Savitt case, index number 009762/12. You made many -- let me put demanded her recusal only after she ruled against him. Id. this on the record, you made many false statements about at Tr. 7:4-8 (“[I]fI am biased against you, I should be the facts of that case that can be proven by documentary recusing myself in all of your matters. You did not ask me evidence. I have a copy of the transcript. I will be filing a to recuse myself in this matter when it was submitted to me motion after we leave here today, but I am requesting that in Special Term on that day.”). Judge Samuels did eventually you recuse yourself, because you have unfair, undue bias recuse herself, but for reasons unrelated to Savitt's claim of against me based upon your findings in this case which were bias; the recusal was because she was not handling cases © 2023 Thomson Reuters. No claim to original U.S. Government Works. 3 FILED: KINGS COUNTY CLERK 01/17/2023 03:17 PM INDEX NO. 521209/2021 NYSCEF TribecaNO. DOC. Equity 79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023 997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U) involving The Related Companies L.P. (“Related”), which, she learned during colloquy, has an ownership interest in On the issue of his excuse for not appearing in court as Tribeca. Id. at Tr. 19:20-20:10; see also Todd Nahins Aff., directed by Judge Samuels, Savittclaimed in his unsworn dated October 8, 2013, at ¶16. The evidentiary hearing was submission that “I was not in NYC on the morning of August adjourned until the following day, August 16, 2013. The judge 16, 2013 and could NOT attend the hearing.” Id. at ¶53 assigned to Special Term I would also, according to Judge (emphasis in original).He also stated that “I explained to Samuels' directive, conduct a de novo review of the original Judge Samuels, that I was NOT available on August 16, 2013, decision.5 Tr. 21:7-16 (Aug. 15, 2013); see also Recusal that I had two (2) clients in from Charlotte, N.C.” Id. at ¶51 Order dated August 15, 2013. Although Savitt requested that (emphasis in original). As will be discussed below, a transcript Judge Samuels adjourn the matter until the following week of the August 15 court appearance reveals that Savitt neither because he had “some people coming in *6 from out of informed Judge Samuels that he was unavailable on August town,” his application was denied. Tr. 20:9-10 (Aug. 15, 16 nor explained that he had clients coming in from Charlotte, 2013). The court appearance ended with Savitt's confirming North Carolina. In other words, the purported excuse that that the motions would be heard the next day in Special Term Savitt made, and which he criticized Judge Samuels for I. Id. at Tr. 21:17-20. rejecting, was a fallacy. On August 16, 2013, the matter was called in Special The return date of Savitt's new motion was scheduled for Term I, where Judge Schecter was presiding. Tribeca's December 3, 2013. Counsel for *7 Tribeca appeared, but counsel appeared for the hearing, but Savitt failed to appear. Savitt did not. Because Tribeca's cross-motion essentially Savitt never notified Tribeca's counsel that he would not sought summary judgment on the issue of petitioner's be appearing. Tr. 119:7-15 (Feb. 18, 2013). He also did entitlement to attorneys' fees, the Court took the matter on not submit an affidavit of actual engagement nor any other submission to perform a closer review of the application for document notifying the Court that he would not be appearing relief. See Liberty Taxi Mgt., Inc. v. Gincherman, 32 AD3d that day. Id. at Tr. 117:24-118:22. Upon Savitt'sfailure 276, 277 (1st Dep't 2006), citing, Vermont Teddy Bear Co. v. to appear, Judge Schecter issued an order denying Savitt's 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (“[T]he motion on default. Exh. 14, Order dated August 16, 2013. failure to oppose a motion for summary judgment alone does Tribeca's cross-motion for attorneys' fees was apparently not justify the granting of summary judgment. Instead, the . . . abandoned at that juncture with no decision being issued. court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of D.Savitt's Motion to Vacate the August 16, 2013 Order material fact and is entitled to judgment as a matter of law.”). On September 19, 2013, more than a month after defaulting, E.The February 18, 2014 Sanctions Hearing Savitt served a motion to vacate Judge Schecter's August 16, 2013 order. While Savitt signed his September 19 notice of After reviewing the motion, as well as the cross-motion and motion to vacate, he failed to sign and have notarized his court records, this Court concluded that Savitt's conduct may have risen to the level of frivolity. The Court therefore sua “affidavit” that he submitted in support of the motion.6 Exh. 4, sponte placed the matter on its calendar to provide Savitt with Unsworn Savitt Aff., dated September 19, 2013. Savitt, in his the opportunity to address this Court's concerns: defective motion papers, continued to unleash vitriol towards seemly any person that has been involved in the litigation The Court has under submission Respondent Richard Savitt's against him, which includes Judge Samuels, Nahins, Davies, motion to vacate an August 16, 2013 decision and order and Mishkin. Id. at ¶¶20, 22, 23, 26, 28, 31, 35, 39, 40, 42, (Schecter, J.)and Petitioner Tribeca Equity Partners L.P.'s and 46. For instance, Savitt claimed that Judge Samuels “has cross-motion, as a prevailing party, for the imposition made other derogatory and false statements about me and my of attorneys' fees. The Court is considering the possible actions and behavior in the past.” Id. at ¶39. Savitt further imposition of sanctions against Savitt in accordance with stated that Judge Samuels refused to recuse herself “despite 22 N.Y.C.R.R. 130-1.1. Because the issue was not briefed, the fact that I had a transcript[in Daniel Express] . .. , Savitt will be provided an opportunity to address the Court's whereby Judge Samuels had made repeated false statements concerns at a court conference to be held on February 18, 2014 ON THE RECORD, and was made aware of same.” Id. at ¶40 (emphasis in original). © 2023 Thomson Reuters. No claim to original U.S. Government Works. 4 FILED: KINGS COUNTY CLERK 01/17/2023 03:17 PM INDEX NO. 521209/2021 NYSCEF TribecaNO. DOC. Equity 79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023 997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U) in Special Term I (Room 325) at 9:30 a.m., which shall be we're not going to proceed with it until this is finished being conducted on the record. heard.” Id. at Tr. 7:1-4. The Court followed up on Savitt's statement by asking, “Are you tellingthe Court that you Exh. 1, Order dated January 28, 2014. Having reviewed utilized a notice of motion as if it was a court order preventing transcripts and the court file, this Court also determined that execution?” Id. at Tr. 7:5-7. At this point Savitt disclaimed any certain relevant documents were missing from the court file. responsibility by asserting that he only provided the motion This Court therefore issued an order “direct[ing] that, on or papers because “they asked . . . me for a copy.” Id. at Tr. 7:8-9. before February 14, 2014, non-party Marion S. Mishkin shall Although the Court did not receive a satisfactory explanation provide the Court with an additional complete copy of all of of how the execution on a money judgment was apparently her submissions made to the Court in this matter.” Order dated stayed without a court order, the focus of the proceedings February 10, 2014. shifted to other topics. Id. at 7:11-12. On February 18, 2014, this Court began proceedings in The Court turned Savitt's attention to his primary contention the sanctions hearing by marking the scheduling order as in support of his application: that a rogue attorney executed Exhibit 1 and reading it into the record. Tr. 2:1-16 (Feb. 18, the so-ordered stipulation without his knowledge or consent. 2014). Nahins, petitioner's counsel, placed his appearance on To explain his failure to appear afterfiling an answer or the record.7 Id. at 2:19-20. Thereafter, Savitt was sworn in inquiring about the status of the pending litigation,Savitt because he would be answering this Court's questions under asserted that he orally settled the dispute with a representative oath. Id. at 2:17-25. Having been apprised of the hearing by of Tribeca. The alleged oral agreement permitted Savitt to the February 10, 2014 court order, Mishkin also appeared on break the remaining term of his lease with the landlord's February 18 and was called upon to provide testimony under retaining his security deposit. Id. at Tr. 8:5-13. When pressed oath. Savitt was provided the opportunity to cross-examine on his explanation, Savitt provided no details regarding her. the circumstances by which he secured the alleged oral settlement. He could not even identify the representative The Court initiallyrequested that Savitt address his of Tribeca with whom he allegedly entered into the oral submission of an “affidavit” that was not executed. Id. at Tr. agreement, except to admit, under questioning, that it was 4:3-9. In a rambling response, Savitt asserted that the copy in not petitioner's counsel. Id. at Tr. 8:16-21. Savitt also could the Court's possession, which was marked as Exhibit 4, must not explain how he could ethically discuss the case with this be a version he sent to City Marshal Martin A. Bienstock, who unidentified representative of Tribeca pursuant to then-DR apparently had served an execution on Savitt relating to the 7-1048 when he knew that Tribeca was represented by counsel money judgment. Id. at Tr. 5-1:13. Savitt never provided this in pending litigation against him. See Matter of Wehringer, Court with an actual explanation for why the only copy in the 135 AD2d 279, 282 (1st Dep't 1988) (“Although he knew Court's possession was not executed. Nor, during the hearing that [defendant] was represented by counsel he negotiated or at any time thereafter, did Savitt provide this Court with an directly with her without permission from her attorneys and so executed copy of the affidavit. violated DR 7-104(A)(1).”); see also Topic: No Contact Rule As Applied to Lawyer Acting Pro Se and Lawyer Represented Savitt's attempt to explain, without success, the absence of an Party; 2011 WL 7784089, NY Eth. Op. 879 (NY St. Bar. executed copy of his affidavit on file with the Court raised Assn. Comm. Prof. Eth. Sep. 27, 2011) (noting that self- a new issue: Savitt apparently secured a stay of execution of represented attorneys cannot ethically contact a represented the money judgment without a court order. Id. at Tr. 6:17-19 party except in limited circumstances not present here). (“that's [Marshal Bienstock's] internal number so they could halt this execution of the wrongfully obtained judgment.”). Savitt was also unable to explain how such an oral settlement Having been so advised of this de facto stay of execution, would be legally enforceable under CPLR 2104.9 Savitt the Court asked, “Why would the execution be stayed upon claimed not to be aware of the language of CPLR 2104, *8 your motion? A notice of motion doesn't stay [execution of which this Court then read to him. Id.at Tr. 77:22-78:15. a judgment].” Id. at Tr. 6:20-24. Savitt asserted in response His asserted ignorance of thisprocedural rule is suspect that Marshal Bienstock ceased enforcement efforts because because Savitt's previous attempt to rely on an oral settlement “[t]hey know that I'm an honest and ethical attorney and they was rejected by Judge Shafer in Epinard because it was took me at my word that this was on going and they told me not in open court. See 2004 WL 6339870, at *3. Faced © 2023 Thomson Reuters. No claim to original U.S. Government Works. 5 FILED: KINGS COUNTY CLERK 01/17/2023 03:17 PM INDEX NO. 521209/2021 NYSCEF TribecaNO. DOC. Equity 79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023 997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U) with the conundrum of the absence of a writing, Savitt then refund took place afterthe action was filed.Tr. 37:14-16 baldly claimed that settlement documents must exist without (Mar. 18, 2014) (“The refund was given after the lawsuit was identifying them: “I believe 100% there is documentation filed.”).Savitt'ssubpoenaed banking records revealed that sitting at whatever, Tribeca Equity Partners.” Tr. 79:1-2 (Feb. on February 24, 2011, the $283.91 refund had been returned 18, 2014). Documents Tribeca produced after the hearing did to Savitt's bank account. On February 25, according to the not contain any material discussing a potential agreement, clerk'sfile stamp on the summons, Savitt commenced his much less memorializing one. Exh. 25. Savitt has never action against Daniel Express. CCA 400; see also CPLR 304; produced anything supporting the existence of a settlement. Spodek v. New York State *9 Com'r of Taxation and Finance, 85 NY2d 760, 763-66 (1995). Savitt's complaint asserted Nor, for that matter, could Savitt explain how he believed, to multiple causes of action each seeking $25,000. the extent that this is his claim, that he could enter into an oral agreement to waive outstanding rental arrears when his lease Daniel Express eventually sought summary judgment and contained a standard prohibition against orally modifying sanctions. When the motion was first returnable, Savitt lease terms, i.e., a no waiver provision. Exh. 2 at ¶¶16, 17, claimed to be unable to secure his own banking records 28. As would later be addressed on March 18, 2014, Savitt to document the refund's existence. Savitt Aff. in Daniel was aware during the course of these proceedings thathe Express, dated August 13, 2012, at ¶20. On May 8, 2012, could not have orally modified the terms of his lease after he Judge Samuels personally handwrote a subpoena for Savitt unsuccessfully litigated that very issue in another action. See to serve on his own bank. Id. at ¶¶ 12, 17, 21, see also Exh. 23a, Tosi v. Yorkshire Towers GP Co., LLC, Index No. Exh. 9, Decision and Order in Daniel Express, dated July CV-013955/09 (Civ. Ct., NY County Apr. 2, 2013) (Reed, 20, 2012. On June 14, 2012, Savitt failed to appear for oral J.) (holding that a standard form apartment lease containing argument of Daniel Express' motion. Exh. 9. In addition to “no waiver” and general merger clauses require a writing dismissing Savitt's complaint, Judge Samuels also awarded signed by the landlord to permit the early termination of a Daniel Express $8,250 in attorneys' fees. Id. lease without penalty or a relinquishment of the tenant's rent obligations). When Savitt moved to vacate his default, he stated in his affirmation his reason for not appearing on June 14, 2012: Next, the Court delved into Savitt'sdisrespectful behavior toward Judge Samuels. Savitt remained unapologetic for On May 8, 2012, I relied on Judge Samuels writing that “No making multiple accusations of misconduct directed at Judge appearance is required if records are sent to civil court NY, Samuels. Tr. 25:11-26:11 (Feb. 18, 2014). Rather, Savitt 111 Centre St. NY, NY 10013 Rm. 225” and me [sic] until I essentially wanted to litigate his perceived failings of Judge received the court decision dated July 20, 2012. I was waiting Samuels in Daniel Express. The Court inquired about the to be notified of a future hearing date. status of any appellate review of the decision, issued in 2012, that so bitterly aggrieved him. Id. at Tr. 43:3-6. Savitt Savitt Aff. in Daniel Express, dated August 13, 2012, at ¶21. admitted that despite having filed a notice of appeal, he never During oral argument of Savitt's motion to vacate his default perfected an appeal. Id. at Tr. 43:3-11. Despite the decision in that action,Savitt confirmed thatthe reason he did not in Daniel Express being final, Savitt has apparently failed to appear was that the subpoena, which was addressed to non pay the sanction imposed against him by Judge Samuels in party Citibank, stated that no appearance was necessary if the that matter. During his testimony, Savitt exhibited absolutely records were produced: no remorse for repeatedly being disrespectful to a judge. MR. SAVITT: Because on May 8th Your Honor drafted - Your Although irrelevant to Savitt's professional obligation to be Honor drafted a subpoena and asked me to serve it on Citibank respectful of the judiciary, Daniel Express is discussed here because I have sent three letters to Citibank requesting for background purposes. The facts of Daniel Express are records. . . . Your Honor in the subpoena specifically wrote straightforward: On February 16, 2011, Savitt purchased and that it was - that the bank was to supply the record by May returned a $321.18 cell phone. A refund was processed the 27th, but that no one needed to appear. The language is in the same day minus a thirty-seven dollar ($37) charge allegedly document that you have. . . . relating to a SIM card sold for use with the phone. Exh. 10c, settlement refund report. Savitt misrepresented that the THE COURT: On the subpoena it says that? © 2023 Thomson Reuters. No claim to original U.S. Government Works. 6 FILED: KINGS COUNTY CLERK 01/17/2023 03:17 PM INDEX NO. 521209/2021 NYSCEF TribecaNO. DOC. Equity 79Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (2014) RECEIVED NYSCEF: 01/17/2023 997 N.Y.S.2d 101, 2014 N.Y. Slip Op. 50956(U) having been focused solely to Housing Court cases in which MR. SAVITT: Not to appear. he was a party prior to the instant litigation. Id. at Tr. 24:17-20. THE COURT: Who was the subpoena directed to? When this Court confronted Savitt with the documentary evidence showing that,contrary to his assertion to Judge MR. SAVITT: Citibank. Samuels, he had previously been in Housing Court, Savitt justified his failure to recall the prior litigations because he THE COURT: They are not to appear, if they supply the was, at the time, “practicing in Connecticut and New York.” records. Are you thinking that was you not to appear? Id. at Tr. 36:18-24. Savitt's handling of cases in two states as an attorney should have had little impact on his ability to recall MR. SAVITT: Due [to] the fact I was unable to get the records, two lawsuits in which he was personally sued for not paying yes. I thought Your Honor was waiting to [] get the record and rent, with the laterproceeding resultingin his departure, tell us a date to appear. . . . pursuant to a stayed warrant of eviction, from the apartment in which he resided before he lived in the apartment subject Exh. 10a at Tr. 3:21-4:14 (Sep. 12, 2012), transcript of to the instant litigation. Exh. 11b, so-ordered stipulation in proceedings in Daniel Express. Savitt admitted during Spring Partners II. Savitt was also required to make a future colloquy that he had never inquired about the production of payment to satisfy a money judgment entered against him in the subpoenaed bank records. Id. at Tr. 6:2-6. Spring Partners II pursuant to the stipulation he signed. Exh. 11a. Furthermore, Savitt unsuccessfully sought by order to After hearing oral argument, the Court denied Savitt's motion show cause to vacate the money judgment he agreed to in to vacate on the ground that *10 his proffered excuse for Spring Partners II three years after it had been entered; as failing to appear was unreasonable: noted above, Savitt failed to disclose this application when this Court inquired about the existence of any other attempt [Savitt's] argument that he believed a directive addressed to to vacate judgments entered against him. Tr. 69:21-70:1 (Feb. non-party Citibank, written on a subpoena to Citibank, was 18, 2014). a directive to the litigants that they need not appear if the records are provided, is not credible. Savitt also stood by his previous representation that he had never previously spoken to Mishkin. In doing so, he was Exh. 10b, Decision and Order in Daniel Express, dated unable to explain the six telephone calls he had with Mishkin, December 17, 2012. Judge Samuels also found Savitt's as reflected in phone records, on the day the action settled. assertion in his August 13, 2012 affirmation that “I have never The only explanation Savitt provides for the existence of received a check or credit in the amount of $321.18 from the these phone calls is the highly implausible contention that Defendants” to be “disingenuous,” given “that he did receive he believed that the phone calls were from Tribeca: “So, a refund, even if it was not in the amount he sought.” Id. at 6. receiving phone calls from somebody representing whatever, Tribeca Equity Partners, on that day stating that the case is Savitt was then given the opportunity by this Court to correct resolved, the case is done, that I believe.” Tr. 81:5-8 (Feb. the record relatingto his untruthful statement that he had 18, 2014); see also id. at Tr. 66:3-4 (“I said that I spoke to never been involved in another Housing Court case prior to a representative of 105 Duane Street which I have always the instant litigation. With a second judge questioning the said, Your Honor”). Savitt was unable to give the Court any veracity of his affirmative representation, Savitt modified his detail regarding the contents of the discussions that took place earlier testimony, but he did not admit the existence of his during these *11 phone calls. Id. at Tr. 66:24-67:13. earlier litigation. Instead, Savitt essentially doubled down on the “recollection” escape hatch about which Judge Samuels Mishkin, on the other hand, was able to provide the Court had previously challenged him. Tr. 21:16-22-2 (Jul. 23, 2013). with a detailed accounting of her authority to appear on Savitt now represented that “I have no idea if I have ever Savitt's behalf and Savitt's approval of the terms of the been in Housing Court or not.” Tr. 24:6-7 (Feb. 18, 2014). settlement. Mishkin testified that, consistent with her custom When the Court inquired about the change in representations, for obtaining assignments, she received phone calls from Savitt blithely responded: “That's my testimony now.” Id. at Samson Freundlich of Per Diem Services on the evening of Tr. 24:13. Savitt refused to provide a definitive answer despite October 18, 2006 with the assignment to appear on Savitt's © 2023 Thomson Reuters. No claim to original U.S. Governm