Preview
FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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Ahron H. Follman as Trustee and Beneficiary of the Lazar Index No.: 508865/2023
Follman 2011 Family Trust, Ahron N. Follman as Trustee
and Beneficiary of the Esther Follman 2011 Family Trust,
Assigned Justice:
Plaintiffs, Hon. Richard Velasquez
-against- Motion Seq. No. 004
Eugene Gruber as Trustee of the Lazar Follman 2011
Family Trust, Eugene Gruber as Trustee of the Esther
Follman 2011 Family Trust, et al.,
Defendants.
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DEFENDANT MELTZER, LIPPE, GOLDSTEIN & BREITSTONE,
LLP’s MEMORANDUM OF LAW IN FURTHER SUPPORT OF
CROSS-MOTION FOR SANCTIONS AGAINST AHRON H.
FOLLMAN AND JOSEPH Y. BALISOK, JOINTLY AND
SEVERALLY, PURSUANT TO 22 NYCRR §130-1.1(a) AND FOR
TREBLE DAMAGES AGAINST JOSEPH Y. BALISOK, ESQ.
PURSUANT TO JUDICIARY LAW § 487
MELTZER, LIPPE, GOLDSTEIN & BREITSTONE, LLP
190 Willis Avenue
Mineola, New York 11501
(516) 747-0300
Thomas J. McGowan, Esq.
Kimberly A. (Oringer) Ahrens, Esq.
Attorneys for Defendant Meltzer, Lippe, Goldstein & Breitstone, LLP
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
ARGUMENT .................................................................................................................................. 4
PLAINTIFF AND HIS ATTORNEY REPEATEDLY LIED TO
THE COURT .............................................................................................. 4
SANCTIONS ARE WARRANTED AGAINST PLAINTIFF AND
COUNSEL .................................................................................................. 5
ORDER TO SHOW CAUSE IS FRIVOLOUS PER 22 NYCRR
§§ 130-1.1(c)(2) AND (3) ........................................................................... 8
A. The OSC is frivolous under 22 NYCRR §130-1.1(2)
because it was filed to delay resolution of MLG’s summary
judgment motion ............................................................................. 8
B. The OSC is frivolous under § NYCRR 130-1.1(3) because
it asserts material factual statements that are false ......................... 9
CONCLUSION ............................................................................................................................. 12
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TABLE OF AUTHORITIES
Page(s)
Cases
Amalfitano v. Rosenberg,
12 N.Y.3d 8 (2009) .............................................................................................................. 11, 12
Application of Isseks,
544 N.Y.S.2d 471 (Sup. Ct., Orange Co. 1989) ........................................................................ 10
Boye v. Rubin & Bailin, LLP,
56 N.Y.S.3d 57 (1st Dep’t 2017) ............................................................................................... 11
Cinao v. Reers,
893 N.Y.S.2d 851 (Sup. Ct., Kings Co. 2010) .......................................................................... 12
Citibank (S. Dakota) N.A. v. Alotta,
715 N.Y.S.2d 530 (3d Dep’t 2000) ....................................................................................... 9, 10
In re Kover,
19 N.Y.S.3d 228 (1st Dep’t 2015) ............................................................................................. 10
Intercontinental Credit Corp. Div. of Pan Am. Trade Dev. Corp. v. Roth,
579 N.E.2d 688 (1991) ................................................................................................................ 9
Kamen v. Diaz-Kamen,
837 N.Y.S.2d 666 (2d Dep’t 2007) ............................................................................................. 9
Lightron Corp. v. J.S.M. Holdings, Inc.,
591 N.Y.S.2d 853 (2d Dep’t 1992) ............................................................................................. 9
Palmieri v. Biggiani,
970 N.Y.S.2d 41 (2d Dep’t 2013) ............................................................................................. 12
Pronti v. Grigoriou,
882 N.Y.S.2d 354 (3d Dep’t 2009) ............................................................................................. 9
SRF Builders Capital Corp. v. Ventura,
644 N.Y.S.2d 813 (2d Dep’t 1996) ............................................................................................. 8
U.S. Bank Nat. Ass'n v. Gonzalez,
952 N.Y.S.2d 59 (2d Dep’t 2012) ............................................................................................... 9
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Statutes
Judiciary Law § 487 .......................................................................................................... 1, 2, 4, 12
Rules
CPLR 3120...................................................................................................................................... 4
CPLR 3214(b) ................................................................................................................................. 3
Regulations
22 NYCRR 202.8-b ...................................................................................................................... 13
22 NYCRR 1200 ........................................................................................................................... 10
22 NYCRR §130-1.1(a) .......................................................................................................... 1, 3, 8
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PRELIMINARY STATEMENT
Defendant Meltzer, Lippe, Goldstein & Breitstone, LLP (“MLG”) respectfully submits this
memorandum of law in further support of MLG’s cross-motion for sanctions pursuant to 22
NYCRR §130-1.1(a) against Plaintiff Ahron H. Follman and Joseph Y. Balisok, Esq., jointly and
severally, in the form of a money judgment equal to the value of the attorney’s fees, costs and
disbursements incurred by MLG in addressing Plaintiff’s discovery motion brought on by Order
To Show Cause (the “OSC”), and pursuant to Judiciary Law §487 against Joseph Y. Balisok, Esq.,
trebling the damages caused MLG by his knowing deceit upon/attempt to deceive this Court.
Plaintiff’s OSC, supported by Emergency Application dated September 5, 2023 (NYSCEF
80), is based on the false premise that Plaintiff was unable to adequately oppose MLG’s summary
judgment motion dated May 1, 2023 because Plaintiff belatedly claimed a need to conduct
discovery in this action. Importantly, Plaintiff submitted his papers in opposition to MLG’s
summary judgment motion on June 14, 2023. (NYSCEF 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,
34, 35, 36, 37, 38, 39, 40). Plaintiff did not contend that he needed discovery in his opposition
papers. See Id.
Notwithstanding this fact, despite the fact that MLG’s summary judgment had been fully
briefed by both parties, with Plaintiff’s opposition to MLG’s summary judgment motion having
been filed months earlier on June 14, 2023 (NYSCEF 23, 39, 40), Plaintiff filed his proposed OSC
on August 29, 2023 and then a bogus emergency application in support on September 5, 2023
which claimed, for the first time, that Plaintiff needed discovery to oppose MLG’s summary
judgment motion. (NYSCEF 65, 80). As demonstrated in MLG’s original cross-motion papers,
this was a feigned need for discovery since Plaintiff already had this discovery in his possession
pursuant to discovery had in a related Surrogates’ Court proceeding.
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The Emergency Affirmation in Support if OSC by Plaintiff’s counsel, Mr. Balisok, (the
“Balisok Aff.”) (id.) contained numerous lies and misstatements which are irrefutably intended to
mislead the Court. For example, the Balisok Aff. egregiously omitted the fact that Plaintiff had
received approximately 5,000 pages of documents in connection with the related Surrogate’s Court
proceeding involving Plaintiff’s father’s estate which included the very same documents that
Plaintiff’s counsel falsely contended were never provided to Plaintiff. In response, MLG’s filed
its cross-motion to set the record straight, correct the misstatements contained in the Balisok Aff.,
and fill in gaps where Plaintiff intentionally omitted information. See Affirmation of Thomas J.
McGowan dated September 19, 2023 (the “McGowan Aff.”) and the accompanying exhibits
(NYSCEF 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97) as well as the accompanying memorandum
of law in support of cross-motion (“MLG’s Memo. of Law”) (NYSCEF 98).
Despite being caught in their lies, and instead of correcting their misstatements to the
Court, Plaintiff and his counsel double-downed on their attempt to create a false narrative in their
opposition papers to MLG’s cross-motion. Their story has changed, however. Forced to
acknowledge that Plaintiff already has the documents he claimed he needed in the Balisok Aff.,
Plaintiff now complains that certain documents were redacted.
To further their evolving false narrative, Plaintiff and his counsel try as hard as they may
to make it seem like MLG failed to produce discovery. The Balisok Aff. and Plaintiff’s opposition
papers to MLG’s cross-motion for sanctions focus heavily on the fact that MLG did not produce
documents in response to Plaintiff’s document demands dated July 18, 2023. See, e.g., Plaintiff’s
Memo. of Law, p. 3 (complaining about MLG’s “blanket refusal to engage in discovery”). Plaintiff
ignores the fact that MLG was not under any obligation to respond to these discovery demands, as
discovery had been stayed at that point as a result of the May 1, 2023 filing of MLG’s summary
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judgment motion. See CPLR 3214(b). Worse, Plaintiff omits that he was already in possession of
all the documentation he claimed to need in his “emergency” motion.
Plaintiff’s opposition papers deceivingly omit that the document demand he complains
were not responded to in this action is virtually identical to the document demand that Plaintiff
served on MLG in the related proceeding entitled Probate Proceeding, Will of Lazar D. Follman,
Deceased (Surr. Ct., Kings Co. File No. 2018-2240) (the “Surrogate’s Court Proceeding”).
Compare, Ex. 1 to the accompanying Thomas J. McGowan Reply Affirmation (document demand
served in the Surrogate’s Court Proceeding) with Ex. 2 thereto (document demand served in the
instant action on July 18, 2023). Importantly, one of the primary subjects of the Surrogate’s Court
Proceeding is the basis of the instant action – namely, the Lazar D. Follman 2017 Revocable Trust
(the “2017 Trust”). MLG produced all of the relevant, non-privileged documentation and
communications that it had in its possession, custody, and/or control related to the 2017 Trust in
the Surrogate’s Court Action. In his opposition papers, Plaintiff contradicts himself and
acknowledges that fulsome discovery took place in the Surrogate’s Court Action. See Plaintiff’s
Memo. of Law, Point I (describing, in detail, the history of discovery in the Surrogate’s Court
Proceeding).
In addition to the foregoing, as set forth in the McGowan Aff., MLG’s Memo. of Law and
described more fully below, Plaintiff told many other lies and omitted other relevant information
to the Court in the Balisok Aff. and in Plaintiff’s Memo of Law (see infra, Points I and II) in an
attempt to deceive it. As such, Plaintiff and his counsel should be sanctioned pursuant to 22
NYCRR § 130-1.1(a), jointly and severally, in an amount equal to the value of the attorneys’ fees
incurred by MLG in opposing this abjectly frivolous motion (see infra, Point III). The award
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against Plaintiff’s counsel should also be trebled pursuant to Judiciary Law §487 (id., see MLG’s
Memo. of Law, Point III).
ARGUMENT
PLAINTIFF AND HIS ATTORNEY REPEATEDLY LIED TO THE COURT
Plaintiff and his counsel should be sanctioned for lying to this Court in the OSC. The
following summarizes some of the various lies and omissions contained in the Balisok Aff.:
• Mr. Balisok falsely states that MLG’s response to Plaintiff’s Notice to Produce
was served “after responses were due.” (Balisok Aff., ¶ 4 – NYSCEF 66). See
also id., ¶ 15 ([MLG] has not complied with the discovery requests . . . .”).
However, Plaintiff’s Notice to Produce was served on July 18, 2023, and MLG’s
response was timely served twenty days later on August 7, 2023. (McGowan Aff.,
¶¶ 4-5). The statement is also intentionally deceiving because it implies that MLG
was under an obligation to respond, when in fact, discovery had been stayed for
several months at that point due to the filing of MLG’s summary judgment motion
on May 1, 2023. See CPLR 3120.
• Mr. Balisok falsely claims that discovery is necessary to oppose MLG’s
summary judgment motion. (Balisok Aff., ¶ 4 - NYSCEF 66). However,
Plaintiff’s opposition to MLG’s summary motion, which was submitted on June 14,
2023, never made any contention of a purported need for discovery. (NYSCEF 23,
24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40). This is irrefutable
evidence that there is no actual need for discovery. It is patent that the OSC is a
bad faith attempt to submit a sur-reply in opposition to MLG’s motion raising a
new argument and to stall resolution of MLG’s summary judgment motion after
MLG filed its reply papers.
• Mr. Balisok deceivingly complains about MLG’s “persistent refusal to disclose
trust decanting documents” and omits that Plaintiff had received such
documentation from MLG during discovery in the Surrogate’s Court
Proceeding. (Balisok Aff., ¶ 8 - NYSCEF 66). However, Plaintiff had in his
possession approximately 5,000 pages of documents relating to the decanting of the
trust at issue, including specific communications, memoranda, and drafts of
documents which completely contradict Plaintiff’s false narrative that his parents
were convinced by MLG to alter the beneficiaries of their trust assets (see
McGowan Aff., ¶ 20).
• Mr. Balisok falsely states that it was Mr. and Mrs. Follman’s desire to
“apportion their family’s business assets equally among their children.”
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(Balisok Aff., ¶ 12 - NYSCEF 66). However, Mr. Balisok had in his possession
the documentation already produced by MLG which directly contradicts that
statement, such as a letter from Plaintiff’s parents to MLG which states: “I have
decided and wish that I want to leave all assets of that Trust solely to my son
Avraham Meier Follman and not to any other member of the family, and I am
requesting that you immediately with no further delay prepare whatever documents
are needed so that it can [be] fully implemented . . . .” (NYSCEF 90). See also a
MLG memorandum dated April 5, 2017 describing the conflict between Plaintiff
and his father and attempts to correct Plaintiff’s misbehavior to his father, resulting
in Plaintiff’s parents desire to have new trust documents drafted which changed the
beneficiaries of the trust assets (NYSCEF 91).
• Mr. Balisok falsely states that MLG “concealed the Appointment to Another
Trust documents . . . . They are needed to illustrate the extent to which [MLG]
aided and abetted co-Defendant’s breach of fiduciary duty by fraudulent
means. Discovery of the documents is essential . . . .” (Balisok Aff., ¶ 7 -
NYSCEF 66). However, Mr. Balisok has had access to the Appointment to
Another Trust Documents since May 1, 2023. Indeed, MLG filed said
documentation on May 1, 2023 when it filed its answer in the instant action.
(NYSCEF 16, 17).
• Mr. Balisok omits the fact that he represented Plaintiff in the Surrogate’s
Court Proceeding, where MLG produced all of the documentation that Mr.
Balisok claims to need. (McGowan Aff., ¶ 18; NYSCEF 87).
The foregoing list of lies and omissions represents just some of the demonstrably false tales
espoused by Plaintiff and his counsel in the OSC in an attempt to deceive this Court. The
McGowan Aff. describes in even greater detail additional lies and omissions of Plaintiff and his
counsel. Their bad faith attempts to mislead the Court into delaying resolution of MLG’s summary
judgment motion should be rejected and they should be sanctioned for their deceptive tactics.
SANCTIONS ARE WARRANTED AGAINST PLAINTIFF AND COUNSEL
After MLG’s cross-motion pointed out the lies that Plaintiff and his counsel told this Court
in the OSC, instead of correcting their misstatements, Plaintiff and his counsel tried to cover up
their deception by twisting their story about their need for discovery even further. Indeed,
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Plaintiff’s papers in opposition to MLG’s cross-motion further establish that their asserted need
for discovery was knowingly false.
In Plaintiff’s Memorandum of Law, Plaintiff now admits he did in fact receive “documents
[MLG] produced in connection with a prior Surrogates Court proceeding” – but now, Plaintiff first
complains that such documentation was “noncompliant and heavily redacted” and therefore the
Court should delay resolution of MLG’s summary judgment motion. (Plaintiff’s Memorandum of
Law, p. 1 – NYSCEF 102). See also id., p. 2 (complaining that “[MLG’s] production in the
Surrogates Court was heavily redacted and incomplete.”). First, this completely contradicts the
multitude of statements made in the Balisok Aff. (NYSCEF 66) that no discovery had been
produced by MLG. In any event, these self-serving statements do nothing to excuse Plaintiff’s
demonstrably false assertions to this Court in its original motion papers seeking to compel MLG
to produce documents it previously produced to Plaintiff. The information that was redacted is, as
Plaintiff acknowledges, not even relevant to Plaintiff’s claims in the instant action. Id., p. 7.
The fact that Point I of Plaintiff’s Memorandum of Law contains approximately five pages
of details about the fulsome discovery that took place in the Surrogate’s Court Proceeding is most
telling and further supports the imposition of sanctions against Plaintiff and his counsel. Plaintiff
cannot escape the fact that all of the relevant, non-privileged documentation it claims it needed in
the Balisok Aff. (NYSCEF 66) had already been produced to Plaintiff in the Surrogate’s Court
Proceeding. Plaintiff even details the history of the discovery disputes that took place in the
Surrogate’s Court Proceeding, demonstrating that Plaintiff’s issues with discovery had already
been addressed and resolved.
Although Plaintiff finally admits that he has the documentation which he claims was
needed in the Balisok Aff. (NYSCEF 66), Plaintiff’s Memorandum of Law conveniently omits
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that the discovery demands which Plaintiff served in the instant action are virtually identical to the
demands that Plaintiff served in the Surrogate’s Court Proceeding. See accompanying Affirmation
of Thomas J. McGowan dated November 14, 2023, compare, Ex.1 (document demands served in
the Surrogate’s Court Proceeding) and Ex. 2 (document demands served in the instant action dated
July 18, 2023). Mr. Balisok fails to tell the Court that he copied and pasted the demand that
Plaintiff’s previous counsel drafted and served in the Surrogate’s Court Proceeding into the
document demand Plaintiff served in the instant action. Thus, the documents that are responsive
to the current document demand are the same exact documents that Plaintiff previously requested.
Plaintiff and his counsel should be sanctioned for claiming that the copy-and-pasted document
demand, re-served five years after they were initially served in the Surrogate’s Court Proceeding,
provide a legitimate basis for delaying the resolution of MLG’s summary judgment motion.
Plaintiff’s opposition fails to refute any of the arguments made by MLG in its Cross-
Motion that the OSC is frivolous. Point I of Plaintiff’s Memorandum of Law proves that the basis
of the OSC is knowingly false and that Plaintiff already has in its possession the documentation
which he claimed to need. Point II cites no legal support and fails to demonstrate that the OSC is
anything other than an improper sur-reply to MLG’s motion for summary judgment. Point III is
just another long-winded tale of woe which contradicts the documentary evidence. The documents
which Plaintiff claims will support his made-up story simply do not exist, because the reality is
that Plaintiff’s parents were fed up with Plaintiff’s bad behavior and decided that they wanted to
remove Plaintiff as a beneficiary of their trust assets. See, e.g., NYSCEF 90, 91. Indeed, there is
no evidence, and no documents to discover, which would prove otherwise. Point IV asserts that
sanctions are not warranted; however, as set forth below (infra Point III) sanctions are warranted
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against Plaintiff and his counsel because the OSC is frivolous under 22 NYCRR §130-1.1. As
such, Plaintiff’s opposition papers only support a finding that sanctions are warranted in this case.
ORDER TO SHOW CAUSE IS FRIVOLOUS PER 22 NYCRR §§130-1.1(C)(2) AND (3)
The OSC is frivolous under 22 NYCRR §130-1.1(c)(2) and (3), which provides as follows:
conduct is frivolous if:
...
(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.
As explained above (supra Points I and II), the OSC and Plaintiff’s opposition to MLG’s
cross-motion contain numerous misstatements of fact and materially omit relevant information in
order to deceive the Court into delaying resolution of MLG’s summary judgment motion. In
reality, there is no actual emergency, no need for discovery, and the Court should not reward
Plaintiff for repeatedly lying to the Court by delaying MLG’s summary judgment motion. Such
conduct is worthy of sanctions against both Plaintiff and his counsel.
As explained below, there are ample grounds to find that Plaintiff and his counsel’s conduct
is frivolous under both 22 NYCRR §§130-1.1(c)(2) and (3).
A. The OSC is frivolous under 22 NYCRR §130-1.1(2) because it was filed to delay
resolution of MLG’s summary judgment motion
“[C]onduct of [a party] and his attorney that is undertaken primarily to delay or prolong
the resolution of [an] action [is] therefore frivolous and sanctionable.” SRF Builders Capital Corp.
v. Ventura, 644 N.Y.S.2d 813, 814 (2d Dep’t 1996).
Here, sanctions are warranted because Plaintiff’s OSC, which is nothing more than an ill-
disguised improper sur-reply to MLG’s summary judgment motion, was filed for the purpose of
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delaying resolution of MLG’s summary judgment motion. Intercontinental Credit Corp. Div. of
Pan Am. Trade Dev. Corp. v. Roth, 579 N.E.2d 688, 689 (1991) (sanctions for frivolous
reargument motion). Indeed, the filing of an unnecessary discovery motion with an intent to delay
litigation is frivolous. See, e.g., Pronti v. Grigoriou, 882 N.Y.S.2d 354, 355 (3d Dep’t 2009) (party
sanctioned for moving to compel the production of irrelevant records).
Here, Plaintiff and his counsel have premised the OSC on the supposed need for documents
which have been in Plaintiff’s possession since as early as December 28, 2018. (McGowan Aff.,
¶¶ 18-19 – NYSCEF 86). Plaintiff and his counsel should be sanctioned for filing the OSC. See,
e.g., Lightron Corp. v. J.S.M. Holdings, Inc., 591 N.Y.S.2d 853, 853–54 (2d Dep’t 1992)
(sanctioning a party where “the request was untimely, as it was based upon information admittedly
known to the [party] for several years.”).
B. The OSC is frivolous under § NYCRR 130-1.1(3) because it asserts material factual
statements that are false
Frivolous conduct includes “the filing of a motion that was clearly without merit . . . which
[] asserted material factual statements that were false.” Kamen v. Diaz-Kamen, 837 N.Y.S.2d 666,
668 (2d Dep’t 2007). In U.S. Bank Nat. Ass'n v. Gonzalez, 952 N.Y.S.2d 59, 60 (2d Dep’t 2012),
the Second Department affirmed a finding that sanctions were warranted, stating:
in light of the fact that the plaintiff, inter alia, provided various affirmations
and affidavits wherein it made a certain representation that proved to be
false, and persisted in making that representation after it knew or should
have known it to be false, the Supreme Court providently exercised its
discretion in granting that branch of Gonzalez's motion which was for the
imposition of sanctions upon the plaintiff.
The holding in Citibank (S. Dakota) N.A. v. Alotta, 715 N.Y.S.2d 530 (3d Dep’t 2000) is
directly on point. There, prior to responding to the defendant’s discovery demands, the plaintiff
moved for summary judgment against the defendant. In the defendant’s opposition to the summary
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judgment motion, the defendant submitted an affidavit that was “misleading and contained
misrepresentations” which “were intentionally designed to create the illusion that defendant did
not receive [specific documents] as alleged by plaintiff”. Id. at 532. The Court held: “Turning to
the substantive determination of Supreme Court that defendant's affidavit in opposition to
plaintiff's motion for summary judgment was frivolous because it was factually unsupported and
misleading as to defendant's receipt of plaintiff's statement of account, we find no abuse of
discretion.” Id.
Also similar to the case here, in In re Kover, 19 N.Y.S.3d 228, 236 (1st Dep’t 2015), the
Court found that the “filings are replete with misrepresentations, omissions, distortions, and
statements taken out of context”. Ultimately, “the order to show cause was reviewed by the court
and monetary sanctions [were] imposed based on the false statements therein.” Id. The Court
cited to Rule 3.3(a)(1) of the Rules of Professional Conduct (22 NYCRR 1200) (also applicable to
the instant case) which “provides a lawyer shall not knowingly ‘make a false statement of fact or
law to a tribunal or fail to correct a false statement of material fact or law previously made to the
tribunal by the lawyer.’” Id.
In addition, when a party lies about his need for discovery, he may be sanctioned for filing
frivolous motions. In Application of Isseks, 544 N.Y.S.2d 471, 472 (Sup. Ct., Orange Co. 1989),
the petitioner filed an application seeking depositions, arguing they were necessary in order to
obtain “information and documentation necessary to commence an action”. The Court found that:
“[u]pon a review of the voluminous documents annexed to the motion papers and taking into
account petitioner was present for many of the events she complains of, it is abundantly clear to
the Court that the petitioner has sufficient information to frame a complaint without recourse to
the depositions she seeks” and sanctioned the petitioner for filing the application. Id.
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Here, Plaintiff and his counsel originally argued in the Balisok Aff. that no discovery had
taken place as the basis for delaying resolution of MLG’s summary judgment motion. When MLG
filed its cross-motion, however, it presented an abundance of evidence which proved that Plaintiff
had been in possession of said documentation since as early as 2018, when MLG responded to
Plaintiff’s discovery demands in the Surrogate’s Court Proceeding. (McGowan Aff., ¶¶ 18-19;
NYSCEF 88, 89, 90, 91, 92, 93, 94, 95, 96, 97). Mr. Balisok cannot claim ignorance of that fact
since he represented Plaintiff in the Surrogate’s Court Proceeding. (McGowan Aff., ¶¶ 17-18;
NYSCEF 87). Upon being exposed for lying, Plaintiff and his counsel should have withdrawn the
frivolous OSC, or, at the very least, retracted their knowingly false statements. Instead, they
doubled-down and kept twisting their story even further, making additional misstatements and
continuing to omit material facts in an attempt to mislead this Court. This is grounds for sanctions.
See Boye v. Rubin & Bailin, LLP, 56 N.Y.S.3d 57 (1st Dep’t 2017), where a party and his counsel
continually made the same false claims, the Court found sanctions were warranted and stated:
“counsel was ethically obligated to withdraw any baseless and false claims, if not upon his own
review of the record, certainly by the time Supreme Court advised him of this fact. Instead, counsel
continued to repeat a knowingly false claim in what could only be described as a purposeful
attempt to mislead this Court, and pursued claims which were completely without merit in law or
fact.” Id.
Based on the foregoing, the Court should award MLG a money judgment equal to the value
of the attorney’s fees, costs and disbursements incurred by MLG in addressing Plaintiff’s frivolous
motion. See, e.g., Amalfitano v. Rosenberg, 12 N.Y.3d 8, 15 (2009) (awarding a party three times
the cost of defending against a frivolous claim “[b]ecause, in such a case, the lawsuit could not
have gone forward in the absence of the material misrepresentation, that party's legal expenses in
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defending the lawsuit may be treated as the proximate result of the misrepresentation.”). Indeed,
a statement that is “knowingly false and was offered with the intent to deceive the Supreme Court”
provides grounds for treble damages against counsel pursuant to Judiciary Law § 487. Palmieri
v. Biggiani, 970 N.Y.S.2d 41, 46 (2d Dep’t 2013); see also Cinao v. Reers, 893 N.Y.S.2d 851, 858
(Sup. Ct., Kings Co. 2010) (“Deception of a court is not confined to the actual appearance in court
but has reference to any statement, oral or written, made with regard to a proceeding brought or to
be brought therein and communicated to the court with intent to deceive.”).
Finally, it is irrelevant to the imposition of treble sanctions under Judiciary Law §487
whether the Court was actually misled by the knowing misrepresentations of Plaintiff’s counsel.
See, e.g., Amalifitano v. Roseneberg, supra, 12 N.Y.3d at 14 (“The operative language at issue -
‘guilty of any deceit’ – focuses on the attorney’s intent to deceive, not the deceit’s success”).
CONCLUSION
For the foregoing reasons, MLG respectfully requests that the Court grant MLG’s Cross
Motion in its entirety and grant MLG such other and further relief as this Court deems just and
proper in the circumstances.
Dated: Mineola, New York
November 14, 2023 Respectfully submitted,
MELTZER, LIPPE, GOLDSTEIN &
BREITSTONE, LLP
By: s/ Thomas J. McGowan
Thomas J. McGowan, Esq.
190 Willis Avenue
Mineola, New York 11501
(516) 747-0300
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CERTIFICATION OF WORD COUNT
I hereby certify pursuant to 22 NYCRR 202.8-b that the total number of words in the
foregoing document, exclusive of the caption and signature block, is 3,873 according to the “Word
Count” function of Microsoft Word, the word-processing system used to prepare the document,
and thus the document complies with the word count limit set forth therein.
Dated: Mineola, New York
November 14, 2023
s/ Thomas J. McGowan
Thomas J. McGowan
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Preview
FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X Ahron H. Follman as Trustee and Beneficiary of the Lazar Index No.: 508865/2023 Follman 2011 Family Trust, Ahron N. Follman as Trustee and Beneficiary of the Esther Follman 2011 Family Trust, Assigned Justice: Plaintiffs, Hon. Richard Velasquez -against- Motion Seq. No. 004 Eugene Gruber as Trustee of the Lazar Follman 2011 Family Trust, Eugene Gruber as Trustee of the Esther Follman 2011 Family Trust, et al., Defendants. ------------------------------------------------------------------------X DEFENDANT MELTZER, LIPPE, GOLDSTEIN & BREITSTONE, LLP’s MEMORANDUM OF LAW IN FURTHER SUPPORT OF CROSS-MOTION FOR SANCTIONS AGAINST AHRON H. FOLLMAN AND JOSEPH Y. BALISOK, JOINTLY AND SEVERALLY, PURSUANT TO 22 NYCRR §130-1.1(a) AND FOR TREBLE DAMAGES AGAINST JOSEPH Y. BALISOK, ESQ. PURSUANT TO JUDICIARY LAW § 487 MELTZER, LIPPE, GOLDSTEIN & BREITSTONE, LLP 190 Willis Avenue Mineola, New York 11501 (516) 747-0300 Thomas J. McGowan, Esq. Kimberly A. (Oringer) Ahrens, Esq. Attorneys for Defendant Meltzer, Lippe, Goldstein & Breitstone, LLP 4854-2615-0029, v. 2 1 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 ARGUMENT .................................................................................................................................. 4 PLAINTIFF AND HIS ATTORNEY REPEATEDLY LIED TO THE COURT .............................................................................................. 4 SANCTIONS ARE WARRANTED AGAINST PLAINTIFF AND COUNSEL .................................................................................................. 5 ORDER TO SHOW CAUSE IS FRIVOLOUS PER 22 NYCRR §§ 130-1.1(c)(2) AND (3) ........................................................................... 8 A. The OSC is frivolous under 22 NYCRR §130-1.1(2) because it was filed to delay resolution of MLG’s summary judgment motion ............................................................................. 8 B. The OSC is frivolous under § NYCRR 130-1.1(3) because it asserts material factual statements that are false ......................... 9 CONCLUSION ............................................................................................................................. 12 i 4854-2615-0029, v. 2 2 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 TABLE OF AUTHORITIES Page(s) Cases Amalfitano v. Rosenberg, 12 N.Y.3d 8 (2009) .............................................................................................................. 11, 12 Application of Isseks, 544 N.Y.S.2d 471 (Sup. Ct., Orange Co. 1989) ........................................................................ 10 Boye v. Rubin & Bailin, LLP, 56 N.Y.S.3d 57 (1st Dep’t 2017) ............................................................................................... 11 Cinao v. Reers, 893 N.Y.S.2d 851 (Sup. Ct., Kings Co. 2010) .......................................................................... 12 Citibank (S. Dakota) N.A. v. Alotta, 715 N.Y.S.2d 530 (3d Dep’t 2000) ....................................................................................... 9, 10 In re Kover, 19 N.Y.S.3d 228 (1st Dep’t 2015) ............................................................................................. 10 Intercontinental Credit Corp. Div. of Pan Am. Trade Dev. Corp. v. Roth, 579 N.E.2d 688 (1991) ................................................................................................................ 9 Kamen v. Diaz-Kamen, 837 N.Y.S.2d 666 (2d Dep’t 2007) ............................................................................................. 9 Lightron Corp. v. J.S.M. Holdings, Inc., 591 N.Y.S.2d 853 (2d Dep’t 1992) ............................................................................................. 9 Palmieri v. Biggiani, 970 N.Y.S.2d 41 (2d Dep’t 2013) ............................................................................................. 12 Pronti v. Grigoriou, 882 N.Y.S.2d 354 (3d Dep’t 2009) ............................................................................................. 9 SRF Builders Capital Corp. v. Ventura, 644 N.Y.S.2d 813 (2d Dep’t 1996) ............................................................................................. 8 U.S. Bank Nat. Ass'n v. Gonzalez, 952 N.Y.S.2d 59 (2d Dep’t 2012) ............................................................................................... 9 ii 4854-2615-0029, v. 2 3 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 Statutes Judiciary Law § 487 .......................................................................................................... 1, 2, 4, 12 Rules CPLR 3120...................................................................................................................................... 4 CPLR 3214(b) ................................................................................................................................. 3 Regulations 22 NYCRR 202.8-b ...................................................................................................................... 13 22 NYCRR 1200 ........................................................................................................................... 10 22 NYCRR §130-1.1(a) .......................................................................................................... 1, 3, 8 iii 4854-2615-0029, v. 2 4 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 PRELIMINARY STATEMENT Defendant Meltzer, Lippe, Goldstein & Breitstone, LLP (“MLG”) respectfully submits this memorandum of law in further support of MLG’s cross-motion for sanctions pursuant to 22 NYCRR §130-1.1(a) against Plaintiff Ahron H. Follman and Joseph Y. Balisok, Esq., jointly and severally, in the form of a money judgment equal to the value of the attorney’s fees, costs and disbursements incurred by MLG in addressing Plaintiff’s discovery motion brought on by Order To Show Cause (the “OSC”), and pursuant to Judiciary Law §487 against Joseph Y. Balisok, Esq., trebling the damages caused MLG by his knowing deceit upon/attempt to deceive this Court. Plaintiff’s OSC, supported by Emergency Application dated September 5, 2023 (NYSCEF 80), is based on the false premise that Plaintiff was unable to adequately oppose MLG’s summary judgment motion dated May 1, 2023 because Plaintiff belatedly claimed a need to conduct discovery in this action. Importantly, Plaintiff submitted his papers in opposition to MLG’s summary judgment motion on June 14, 2023. (NYSCEF 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40). Plaintiff did not contend that he needed discovery in his opposition papers. See Id. Notwithstanding this fact, despite the fact that MLG’s summary judgment had been fully briefed by both parties, with Plaintiff’s opposition to MLG’s summary judgment motion having been filed months earlier on June 14, 2023 (NYSCEF 23, 39, 40), Plaintiff filed his proposed OSC on August 29, 2023 and then a bogus emergency application in support on September 5, 2023 which claimed, for the first time, that Plaintiff needed discovery to oppose MLG’s summary judgment motion. (NYSCEF 65, 80). As demonstrated in MLG’s original cross-motion papers, this was a feigned need for discovery since Plaintiff already had this discovery in his possession pursuant to discovery had in a related Surrogates’ Court proceeding. 1 4854-2615-0029, v. 2 5 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 The Emergency Affirmation in Support if OSC by Plaintiff’s counsel, Mr. Balisok, (the “Balisok Aff.”) (id.) contained numerous lies and misstatements which are irrefutably intended to mislead the Court. For example, the Balisok Aff. egregiously omitted the fact that Plaintiff had received approximately 5,000 pages of documents in connection with the related Surrogate’s Court proceeding involving Plaintiff’s father’s estate which included the very same documents that Plaintiff’s counsel falsely contended were never provided to Plaintiff. In response, MLG’s filed its cross-motion to set the record straight, correct the misstatements contained in the Balisok Aff., and fill in gaps where Plaintiff intentionally omitted information. See Affirmation of Thomas J. McGowan dated September 19, 2023 (the “McGowan Aff.”) and the accompanying exhibits (NYSCEF 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97) as well as the accompanying memorandum of law in support of cross-motion (“MLG’s Memo. of Law”) (NYSCEF 98). Despite being caught in their lies, and instead of correcting their misstatements to the Court, Plaintiff and his counsel double-downed on their attempt to create a false narrative in their opposition papers to MLG’s cross-motion. Their story has changed, however. Forced to acknowledge that Plaintiff already has the documents he claimed he needed in the Balisok Aff., Plaintiff now complains that certain documents were redacted. To further their evolving false narrative, Plaintiff and his counsel try as hard as they may to make it seem like MLG failed to produce discovery. The Balisok Aff. and Plaintiff’s opposition papers to MLG’s cross-motion for sanctions focus heavily on the fact that MLG did not produce documents in response to Plaintiff’s document demands dated July 18, 2023. See, e.g., Plaintiff’s Memo. of Law, p. 3 (complaining about MLG’s “blanket refusal to engage in discovery”). Plaintiff ignores the fact that MLG was not under any obligation to respond to these discovery demands, as discovery had been stayed at that point as a result of the May 1, 2023 filing of MLG’s summary 2 4854-2615-0029, v. 2 6 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 judgment motion. See CPLR 3214(b). Worse, Plaintiff omits that he was already in possession of all the documentation he claimed to need in his “emergency” motion. Plaintiff’s opposition papers deceivingly omit that the document demand he complains were not responded to in this action is virtually identical to the document demand that Plaintiff served on MLG in the related proceeding entitled Probate Proceeding, Will of Lazar D. Follman, Deceased (Surr. Ct., Kings Co. File No. 2018-2240) (the “Surrogate’s Court Proceeding”). Compare, Ex. 1 to the accompanying Thomas J. McGowan Reply Affirmation (document demand served in the Surrogate’s Court Proceeding) with Ex. 2 thereto (document demand served in the instant action on July 18, 2023). Importantly, one of the primary subjects of the Surrogate’s Court Proceeding is the basis of the instant action – namely, the Lazar D. Follman 2017 Revocable Trust (the “2017 Trust”). MLG produced all of the relevant, non-privileged documentation and communications that it had in its possession, custody, and/or control related to the 2017 Trust in the Surrogate’s Court Action. In his opposition papers, Plaintiff contradicts himself and acknowledges that fulsome discovery took place in the Surrogate’s Court Action. See Plaintiff’s Memo. of Law, Point I (describing, in detail, the history of discovery in the Surrogate’s Court Proceeding). In addition to the foregoing, as set forth in the McGowan Aff., MLG’s Memo. of Law and described more fully below, Plaintiff told many other lies and omitted other relevant information to the Court in the Balisok Aff. and in Plaintiff’s Memo of Law (see infra, Points I and II) in an attempt to deceive it. As such, Plaintiff and his counsel should be sanctioned pursuant to 22 NYCRR § 130-1.1(a), jointly and severally, in an amount equal to the value of the attorneys’ fees incurred by MLG in opposing this abjectly frivolous motion (see infra, Point III). The award 3 4854-2615-0029, v. 2 7 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 against Plaintiff’s counsel should also be trebled pursuant to Judiciary Law §487 (id., see MLG’s Memo. of Law, Point III). ARGUMENT PLAINTIFF AND HIS ATTORNEY REPEATEDLY LIED TO THE COURT Plaintiff and his counsel should be sanctioned for lying to this Court in the OSC. The following summarizes some of the various lies and omissions contained in the Balisok Aff.: • Mr. Balisok falsely states that MLG’s response to Plaintiff’s Notice to Produce was served “after responses were due.” (Balisok Aff., ¶ 4 – NYSCEF 66). See also id., ¶ 15 ([MLG] has not complied with the discovery requests . . . .”). However, Plaintiff’s Notice to Produce was served on July 18, 2023, and MLG’s response was timely served twenty days later on August 7, 2023. (McGowan Aff., ¶¶ 4-5). The statement is also intentionally deceiving because it implies that MLG was under an obligation to respond, when in fact, discovery had been stayed for several months at that point due to the filing of MLG’s summary judgment motion on May 1, 2023. See CPLR 3120. • Mr. Balisok falsely claims that discovery is necessary to oppose MLG’s summary judgment motion. (Balisok Aff., ¶ 4 - NYSCEF 66). However, Plaintiff’s opposition to MLG’s summary motion, which was submitted on June 14, 2023, never made any contention of a purported need for discovery. (NYSCEF 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40). This is irrefutable evidence that there is no actual need for discovery. It is patent that the OSC is a bad faith attempt to submit a sur-reply in opposition to MLG’s motion raising a new argument and to stall resolution of MLG’s summary judgment motion after MLG filed its reply papers. • Mr. Balisok deceivingly complains about MLG’s “persistent refusal to disclose trust decanting documents” and omits that Plaintiff had received such documentation from MLG during discovery in the Surrogate’s Court Proceeding. (Balisok Aff., ¶ 8 - NYSCEF 66). However, Plaintiff had in his possession approximately 5,000 pages of documents relating to the decanting of the trust at issue, including specific communications, memoranda, and drafts of documents which completely contradict Plaintiff’s false narrative that his parents were convinced by MLG to alter the beneficiaries of their trust assets (see McGowan Aff., ¶ 20). • Mr. Balisok falsely states that it was Mr. and Mrs. Follman’s desire to “apportion their family’s business assets equally among their children.” 4 4854-2615-0029, v. 2 8 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 (Balisok Aff., ¶ 12 - NYSCEF 66). However, Mr. Balisok had in his possession the documentation already produced by MLG which directly contradicts that statement, such as a letter from Plaintiff’s parents to MLG which states: “I have decided and wish that I want to leave all assets of that Trust solely to my son Avraham Meier Follman and not to any other member of the family, and I am requesting that you immediately with no further delay prepare whatever documents are needed so that it can [be] fully implemented . . . .” (NYSCEF 90). See also a MLG memorandum dated April 5, 2017 describing the conflict between Plaintiff and his father and attempts to correct Plaintiff’s misbehavior to his father, resulting in Plaintiff’s parents desire to have new trust documents drafted which changed the beneficiaries of the trust assets (NYSCEF 91). • Mr. Balisok falsely states that MLG “concealed the Appointment to Another Trust documents . . . . They are needed to illustrate the extent to which [MLG] aided and abetted co-Defendant’s breach of fiduciary duty by fraudulent means. Discovery of the documents is essential . . . .” (Balisok Aff., ¶ 7 - NYSCEF 66). However, Mr. Balisok has had access to the Appointment to Another Trust Documents since May 1, 2023. Indeed, MLG filed said documentation on May 1, 2023 when it filed its answer in the instant action. (NYSCEF 16, 17). • Mr. Balisok omits the fact that he represented Plaintiff in the Surrogate’s Court Proceeding, where MLG produced all of the documentation that Mr. Balisok claims to need. (McGowan Aff., ¶ 18; NYSCEF 87). The foregoing list of lies and omissions represents just some of the demonstrably false tales espoused by Plaintiff and his counsel in the OSC in an attempt to deceive this Court. The McGowan Aff. describes in even greater detail additional lies and omissions of Plaintiff and his counsel. Their bad faith attempts to mislead the Court into delaying resolution of MLG’s summary judgment motion should be rejected and they should be sanctioned for their deceptive tactics. SANCTIONS ARE WARRANTED AGAINST PLAINTIFF AND COUNSEL After MLG’s cross-motion pointed out the lies that Plaintiff and his counsel told this Court in the OSC, instead of correcting their misstatements, Plaintiff and his counsel tried to cover up their deception by twisting their story about their need for discovery even further. Indeed, 5 4854-2615-0029, v. 2 9 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 Plaintiff’s papers in opposition to MLG’s cross-motion further establish that their asserted need for discovery was knowingly false. In Plaintiff’s Memorandum of Law, Plaintiff now admits he did in fact receive “documents [MLG] produced in connection with a prior Surrogates Court proceeding” – but now, Plaintiff first complains that such documentation was “noncompliant and heavily redacted” and therefore the Court should delay resolution of MLG’s summary judgment motion. (Plaintiff’s Memorandum of Law, p. 1 – NYSCEF 102). See also id., p. 2 (complaining that “[MLG’s] production in the Surrogates Court was heavily redacted and incomplete.”). First, this completely contradicts the multitude of statements made in the Balisok Aff. (NYSCEF 66) that no discovery had been produced by MLG. In any event, these self-serving statements do nothing to excuse Plaintiff’s demonstrably false assertions to this Court in its original motion papers seeking to compel MLG to produce documents it previously produced to Plaintiff. The information that was redacted is, as Plaintiff acknowledges, not even relevant to Plaintiff’s claims in the instant action. Id., p. 7. The fact that Point I of Plaintiff’s Memorandum of Law contains approximately five pages of details about the fulsome discovery that took place in the Surrogate’s Court Proceeding is most telling and further supports the imposition of sanctions against Plaintiff and his counsel. Plaintiff cannot escape the fact that all of the relevant, non-privileged documentation it claims it needed in the Balisok Aff. (NYSCEF 66) had already been produced to Plaintiff in the Surrogate’s Court Proceeding. Plaintiff even details the history of the discovery disputes that took place in the Surrogate’s Court Proceeding, demonstrating that Plaintiff’s issues with discovery had already been addressed and resolved. Although Plaintiff finally admits that he has the documentation which he claims was needed in the Balisok Aff. (NYSCEF 66), Plaintiff’s Memorandum of Law conveniently omits 6 4854-2615-0029, v. 2 10 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 that the discovery demands which Plaintiff served in the instant action are virtually identical to the demands that Plaintiff served in the Surrogate’s Court Proceeding. See accompanying Affirmation of Thomas J. McGowan dated November 14, 2023, compare, Ex.1 (document demands served in the Surrogate’s Court Proceeding) and Ex. 2 (document demands served in the instant action dated July 18, 2023). Mr. Balisok fails to tell the Court that he copied and pasted the demand that Plaintiff’s previous counsel drafted and served in the Surrogate’s Court Proceeding into the document demand Plaintiff served in the instant action. Thus, the documents that are responsive to the current document demand are the same exact documents that Plaintiff previously requested. Plaintiff and his counsel should be sanctioned for claiming that the copy-and-pasted document demand, re-served five years after they were initially served in the Surrogate’s Court Proceeding, provide a legitimate basis for delaying the resolution of MLG’s summary judgment motion. Plaintiff’s opposition fails to refute any of the arguments made by MLG in its Cross- Motion that the OSC is frivolous. Point I of Plaintiff’s Memorandum of Law proves that the basis of the OSC is knowingly false and that Plaintiff already has in its possession the documentation which he claimed to need. Point II cites no legal support and fails to demonstrate that the OSC is anything other than an improper sur-reply to MLG’s motion for summary judgment. Point III is just another long-winded tale of woe which contradicts the documentary evidence. The documents which Plaintiff claims will support his made-up story simply do not exist, because the reality is that Plaintiff’s parents were fed up with Plaintiff’s bad behavior and decided that they wanted to remove Plaintiff as a beneficiary of their trust assets. See, e.g., NYSCEF 90, 91. Indeed, there is no evidence, and no documents to discover, which would prove otherwise. Point IV asserts that sanctions are not warranted; however, as set forth below (infra Point III) sanctions are warranted 7 4854-2615-0029, v. 2 11 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 against Plaintiff and his counsel because the OSC is frivolous under 22 NYCRR §130-1.1. As such, Plaintiff’s opposition papers only support a finding that sanctions are warranted in this case. ORDER TO SHOW CAUSE IS FRIVOLOUS PER 22 NYCRR §§130-1.1(C)(2) AND (3) The OSC is frivolous under 22 NYCRR §130-1.1(c)(2) and (3), which provides as follows: conduct is frivolous if: ... (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. As explained above (supra Points I and II), the OSC and Plaintiff’s opposition to MLG’s cross-motion contain numerous misstatements of fact and materially omit relevant information in order to deceive the Court into delaying resolution of MLG’s summary judgment motion. In reality, there is no actual emergency, no need for discovery, and the Court should not reward Plaintiff for repeatedly lying to the Court by delaying MLG’s summary judgment motion. Such conduct is worthy of sanctions against both Plaintiff and his counsel. As explained below, there are ample grounds to find that Plaintiff and his counsel’s conduct is frivolous under both 22 NYCRR §§130-1.1(c)(2) and (3). A. The OSC is frivolous under 22 NYCRR §130-1.1(2) because it was filed to delay resolution of MLG’s summary judgment motion “[C]onduct of [a party] and his attorney that is undertaken primarily to delay or prolong the resolution of [an] action [is] therefore frivolous and sanctionable.” SRF Builders Capital Corp. v. Ventura, 644 N.Y.S.2d 813, 814 (2d Dep’t 1996). Here, sanctions are warranted because Plaintiff’s OSC, which is nothing more than an ill- disguised improper sur-reply to MLG’s summary judgment motion, was filed for the purpose of 8 4854-2615-0029, v. 2 12 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 delaying resolution of MLG’s summary judgment motion. Intercontinental Credit Corp. Div. of Pan Am. Trade Dev. Corp. v. Roth, 579 N.E.2d 688, 689 (1991) (sanctions for frivolous reargument motion). Indeed, the filing of an unnecessary discovery motion with an intent to delay litigation is frivolous. See, e.g., Pronti v. Grigoriou, 882 N.Y.S.2d 354, 355 (3d Dep’t 2009) (party sanctioned for moving to compel the production of irrelevant records). Here, Plaintiff and his counsel have premised the OSC on the supposed need for documents which have been in Plaintiff’s possession since as early as December 28, 2018. (McGowan Aff., ¶¶ 18-19 – NYSCEF 86). Plaintiff and his counsel should be sanctioned for filing the OSC. See, e.g., Lightron Corp. v. J.S.M. Holdings, Inc., 591 N.Y.S.2d 853, 853–54 (2d Dep’t 1992) (sanctioning a party where “the request was untimely, as it was based upon information admittedly known to the [party] for several years.”). B. The OSC is frivolous under § NYCRR 130-1.1(3) because it asserts material factual statements that are false Frivolous conduct includes “the filing of a motion that was clearly without merit . . . which [] asserted material factual statements that were false.” Kamen v. Diaz-Kamen, 837 N.Y.S.2d 666, 668 (2d Dep’t 2007). In U.S. Bank Nat. Ass'n v. Gonzalez, 952 N.Y.S.2d 59, 60 (2d Dep’t 2012), the Second Department affirmed a finding that sanctions were warranted, stating: in light of the fact that the plaintiff, inter alia, provided various affirmations and affidavits wherein it made a certain representation that proved to be false, and persisted in making that representation after it knew or should have known it to be false, the Supreme Court providently exercised its discretion in granting that branch of Gonzalez's motion which was for the imposition of sanctions upon the plaintiff. The holding in Citibank (S. Dakota) N.A. v. Alotta, 715 N.Y.S.2d 530 (3d Dep’t 2000) is directly on point. There, prior to responding to the defendant’s discovery demands, the plaintiff moved for summary judgment against the defendant. In the defendant’s opposition to the summary 9 4854-2615-0029, v. 2 13 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 judgment motion, the defendant submitted an affidavit that was “misleading and contained misrepresentations” which “were intentionally designed to create the illusion that defendant did not receive [specific documents] as alleged by plaintiff”. Id. at 532. The Court held: “Turning to the substantive determination of Supreme Court that defendant's affidavit in opposition to plaintiff's motion for summary judgment was frivolous because it was factually unsupported and misleading as to defendant's receipt of plaintiff's statement of account, we find no abuse of discretion.” Id. Also similar to the case here, in In re Kover, 19 N.Y.S.3d 228, 236 (1st Dep’t 2015), the Court found that the “filings are replete with misrepresentations, omissions, distortions, and statements taken out of context”. Ultimately, “the order to show cause was reviewed by the court and monetary sanctions [were] imposed based on the false statements therein.” Id. The Court cited to Rule 3.3(a)(1) of the Rules of Professional Conduct (22 NYCRR 1200) (also applicable to the instant case) which “provides a lawyer shall not knowingly ‘make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.’” Id. In addition, when a party lies about his need for discovery, he may be sanctioned for filing frivolous motions. In Application of Isseks, 544 N.Y.S.2d 471, 472 (Sup. Ct., Orange Co. 1989), the petitioner filed an application seeking depositions, arguing they were necessary in order to obtain “information and documentation necessary to commence an action”. The Court found that: “[u]pon a review of the voluminous documents annexed to the motion papers and taking into account petitioner was present for many of the events she complains of, it is abundantly clear to the Court that the petitioner has sufficient information to frame a complaint without recourse to the depositions she seeks” and sanctioned the petitioner for filing the application. Id. 10 4854-2615-0029, v. 2 14 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 Here, Plaintiff and his counsel originally argued in the Balisok Aff. that no discovery had taken place as the basis for delaying resolution of MLG’s summary judgment motion. When MLG filed its cross-motion, however, it presented an abundance of evidence which proved that Plaintiff had been in possession of said documentation since as early as 2018, when MLG responded to Plaintiff’s discovery demands in the Surrogate’s Court Proceeding. (McGowan Aff., ¶¶ 18-19; NYSCEF 88, 89, 90, 91, 92, 93, 94, 95, 96, 97). Mr. Balisok cannot claim ignorance of that fact since he represented Plaintiff in the Surrogate’s Court Proceeding. (McGowan Aff., ¶¶ 17-18; NYSCEF 87). Upon being exposed for lying, Plaintiff and his counsel should have withdrawn the frivolous OSC, or, at the very least, retracted their knowingly false statements. Instead, they doubled-down and kept twisting their story even further, making additional misstatements and continuing to omit material facts in an attempt to mislead this Court. This is grounds for sanctions. See Boye v. Rubin & Bailin, LLP, 56 N.Y.S.3d 57 (1st Dep’t 2017), where a party and his counsel continually made the same false claims, the Court found sanctions were warranted and stated: “counsel was ethically obligated to withdraw any baseless and false claims, if not upon his own review of the record, certainly by the time Supreme Court advised him of this fact. Instead, counsel continued to repeat a knowingly false claim in what could only be described as a purposeful attempt to mislead this Court, and pursued claims which were completely without merit in law or fact.” Id. Based on the foregoing, the Court should award MLG a money judgment equal to the value of the attorney’s fees, costs and disbursements incurred by MLG in addressing Plaintiff’s frivolous motion. See, e.g., Amalfitano v. Rosenberg, 12 N.Y.3d 8, 15 (2009) (awarding a party three times the cost of defending against a frivolous claim “[b]ecause, in such a case, the lawsuit could not have gone forward in the absence of the material misrepresentation, that party's legal expenses in 11 4854-2615-0029, v. 2 15 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 defending the lawsuit may be treated as the proximate result of the misrepresentation.”). Indeed, a statement that is “knowingly false and was offered with the intent to deceive the Supreme Court” provides grounds for treble damages against counsel pursuant to Judiciary Law § 487. Palmieri v. Biggiani, 970 N.Y.S.2d 41, 46 (2d Dep’t 2013); see also Cinao v. Reers, 893 N.Y.S.2d 851, 858 (Sup. Ct., Kings Co. 2010) (“Deception of a court is not confined to the actual appearance in court but has reference to any statement, oral or written, made with regard to a proceeding brought or to be brought therein and communicated to the court with intent to deceive.”). Finally, it is irrelevant to the imposition of treble sanctions under Judiciary Law §487 whether the Court was actually misled by the knowing misrepresentations of Plaintiff’s counsel. See, e.g., Amalifitano v. Roseneberg, supra, 12 N.Y.3d at 14 (“The operative language at issue - ‘guilty of any deceit’ – focuses on the attorney’s intent to deceive, not the deceit’s success”). CONCLUSION For the foregoing reasons, MLG respectfully requests that the Court grant MLG’s Cross Motion in its entirety and grant MLG such other and further relief as this Court deems just and proper in the circumstances. Dated: Mineola, New York November 14, 2023 Respectfully submitted, MELTZER, LIPPE, GOLDSTEIN & BREITSTONE, LLP By: s/ Thomas J. McGowan Thomas J. McGowan, Esq. 190 Willis Avenue Mineola, New York 11501 (516) 747-0300 12 4854-2615-0029, v. 2 16 of 17 FILED: KINGS COUNTY CLERK 11/14/2023 03:21 PM INDEX NO. 508865/2023 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 11/14/2023 CERTIFICATION OF WORD COUNT I hereby certify pursuant to 22 NYCRR 202.8-b that the total number of words in the foregoing document, exclusive of the caption and signature block, is 3,873 according to the “Word Count” function of Microsoft Word, the word-processing system used to prepare the document, and thus the document complies with the word count limit set forth therein. Dated: Mineola, New York November 14, 2023 s/ Thomas J. McGowan Thomas J. McGowan 13 4854-2615-0029, v. 2 17 of 17