Preview
FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
-------------------------------------------------------------------- X
SAMI MUHAMETAJ and SAMI CONSTRUCTION,
NOTICE OF APPEAL
Plaintiffs,
Index No. 033000/2018
-against-
Assigned to:
TOWN OF ORANGETOWN,
Hon. Paul I. Marx, J.S.C.
Defendant.
"Town"
PLEASE TAKE NOTICE that Defendant Town of Orangetown (the or
"Defendant") and non-party, Robert Magrino, Esq., Town Attorney ("Mr. Magrino"), hereby
appeal to the Supreme Court, Appellate Division, Second Judicial Department from the
Sanctions Order of the Supreme Court of the State of New York, County
of Rockland (Hon.
Paul I. Marx, J.S.C., presiding) dated November 20, 2019 and entered on November 21, 2019, a
copy of which is annexed hereto as Exhibit "A".
Dated: White Plains, New York
November 27, 2019
KEANE & BEANE, P.C.
By:
Lai e H. Klein, Esq.
Attorneys for Defendant
445 Hamilton 15th FlOOr
Avenue,
White Plains, New York 10601
(914) 946-4777
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TO: LAW OFFICES OF DWIGHT D. JOYCE, ESQ.
Att'n: Dwight D. Joyce, Esq.
Attorney for Plaintiffs
2 Joyce Plaza
Stony Point, New York 10980
(845) 429-9323
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Supreme Gourt of t11e 9tate of New Worlt
Appellate Biniøion: Second [Jubicial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil
[a])
Case Title:Set forththe of
title thecase as it appears
on theswarnsña, notice ofpetitionor orderto For Court ofOriginal Instance
show causeby which the matterwas or is to
be mml, or as nmenaga
SAMI MUHAMETAJ and SAMI CONSTRUCTION,
Plaintiffs,
Date Notice of Appeal Filed
- against-
TOWN OF ORANGETOWN, For Appellate Division
Defendant.
O CivilAction CPLR article
78 Proceeding Appeal O Transferred Proceeding
O CPLR article
75 Arbitration O SpecialProceeding Other OriginalProceedings O CPLR Article 78
ActionCommenced under CPLR O CPLR Article 78 O Executive Law § 298
214-g Habeas Corpus Proceeding
Eminent Domain O CPLR 5704 Review
Labor Law 220 or 220-b
Public Officers Law § 36
Real Property Tax Law § 1278
Nature of Suit: Check up to three of the following categories which best reflect the nature of the case.
Administrative Review | O Business Relationships O Commercial O Contracts
Declaratory Judgment O Domestic Relations O Election Law O Estate Matters
O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole
O Real Property O Statutory O Taxation Torts
(other than foreclosure)
InformationalStatement - Civil
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NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019
Paper Appealed From (Check one only): Ifan appeal has been taken from more than one order or
judgment by the of
filing this notice of appeal, please
indicate the below information for each such order or
a judgrnent appealed from on a separate sheet of paper.
O Amended Decree O Determination G] Order O Resettled Order
O Amended Judgemêñt O Finding O Order & Judgment O Ruling
O Amended Order O Interlocutory Decree O Partial Decree O Other (specify):
O Decision O Interlocutory Judgment O Resettled Decree
O Decree O Judgment O Resettled Judgment
Court: Supreme Court County: Rockland
Dated: Navember 20, 2019 Entered: November 21, 2019
Judge (name Hon. Paul I. Marx
in full): Index No.:033000/2018
Stage: G] Interlocutory O Final O Post-Final Trial: O Yes G] No If Yes: O Jury O Non-Jury
Prior Unperfected Appeal and Related Case Information
Are any appeals arisingin thesame action or praceeding currently pendlim in the court? O Yes E No
If Yes,please set forth the Appellate DivisionCase Number assigned to each such appeal.
Where apprepriate, indicate whether there is anyrelated action or proceeding now inany court of thisor any other
jurisdiction,and the
if so, status of the case:
.
Commenced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed:
Statute authorizing ccmmencem-ñt of proceeding inthe Appellate Division:
Court: Choose Court County: Choose County
Judge (name in full): | Order of Transfer Date:
Court: Choose Court County: Choose County
Judge (name in full): Dated:
Description of Appeal, or Application and Statamant of Issues
Precame½y
Description: Ifan appeal, brieflydescribe the paper appealed from. If theappeal is from an order, specify the relief
requested and whether the motion was granted or denied. Ifan original proceeding commenced in thiscourt or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. Ifan app!!cation under CPLR 5704, brieflydescribe the
nature of the ex parte order to be reviewed.
Statement
Informational - Civil
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Issues: Specify the issuesproposed to be raised on the appeal, preceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specificreliefsought on appeal.
1. Should thisCourt reverse the Sanctions Order of the Supreme Court ofthe State of New York, Rockland County
(Honorable Paul I. Marx,dated November 20, 2019) which: (i)imposed rñóñetary sanctions upon the Town (inthe form of
fees and costs to be paid to Plaintiffs
Sami Muhametaj and Sami Construction, as wellas costs forstenographers,
transcripts,video recordings, and an IT Consultant); permitted
(ii) Plaintiffs
to conduct furtherexaminations before of
trial all
individuals who were previously deposed; directed
(iii) the Town to participatein electreñic discovery designed, directed and
overseen by an IT Consultant retained by counsel forPlaintiffsSami Muhametaj and Sami Construction; (iv)directed the
Town to conduct a search forádditiciialaudio and/or video recordings; (v) directed the Town to conduct additionaldocument
discovery, including electronic memoranda and correspondeñce; (vi)found thatinforrñation indicated a substantial likelihood
that the Town Attorney (Robert Magriñõ, Esq.) committed a substantialviolation ofthe Rules of Professional Conduct and
outlined the reasons therefore; and referred
(vii) Robert Magrino, Esq. to the Grievance Committee.
Party Information
Instructions: Fillinthe name of each party to the action or proceeding, one name per line. If this
form is tobe filed for an
appeal, indicatethe status of the party in thecourt of originalinstance and his,her,or itsstatus in thiscourt, if any.If this
form is tobe filed for a proceeding caniñienced inthis court, fill
in only the party's name and his,her, or itsstatus in this
court.
No. Party Name Original Status Appellate Division Status
1 Sami Muhametaj Plaintiff Respondent
2 sami construction Plaintiff Respondent
3 Town of Orangetown Defendant Appellant
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Informational
Staterñent- Civil
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Instructions: Fillin thenames of the attorneys or firmsfor the respective parties. If this
form is tobe filedwith the
notice of petitionor order to show cause by which a specialproceeding is tobe cominenced in theAppellate Division,
only the name of the attorney for the petitioner need be provided, In the event that a litigantrepresents herselfor
Se"
himself,the box marked "Pro must be checked and the apprepriate information forthat litigantmust be supplied
inthe spaces provided.
___..
Attorney/Firm Name: Dwight D. Joyce, Esq. / Law Offices of Dwight D. Joyce,
Esq.
Address: 2 Joyce Plaza
City:Stony Point State: NY Zip:10980 Telepherie No: 845-429-9323
E-mail Address:office@dwightjoycelaw.com
Attorney Type: 2 Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (setforth party number(s) from table above):1
Attorney/Firm Name: Dwight D. Joyce, Esq. / Law Offices of Dwight D. Joyce, Esq.
Address: 2 JoycePlaza
City:Stony Point State: NY Zip:10980 Telephone No: 845-429-9323
E-mail Address: office@dwightJoycelaw.com
Attorney Type: 8 Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (setforth party number(s) from table above):2
Attorney/Firm Name: Lance H. Klein, Esq. / Keane & Beane, P.C.
Address: 445 Hamilton Ave., 15th Fl.
City:WhitePlains State: NY Zip:10601 Telephone No: 914-946-4777
E-mail Address: LKlein@kblaw.com
Attorney Type: 8 Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (setforth party number(s) from table above):3
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
or Parties Represented (setforth party number(s) from table above):
Party
Attorney/Firm Name:
Address:
City: State: Zip: | Te|êphone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (setforth party number(s) from table above):
Attorney/Firm Name:
Address:
City: | State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (setforth party number(s) from table above):
Informational
Statement - Civil
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NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019
INDEx NO. 033000/2018
NYSCEF DOC. NO. 94 . RECEIVED NYSCEF: 11/21/2019
SUPREME COURT OF YORK·
THESTATE OF NEW To commence the statutory
COUNTY OF ROCKLAND time period for appeals as of
HON. PAUL I.MARX, J.S.C. right (CPLR 5513 [al),you
----..------....___.----- -----X are advised to serve a copy
SAMI MUHAMETAJ and SAMI CONSTRUCTION, of this with notice of
order,
entry, upon allparties.
Plaintiffs,
SANCTIONS ORDER
-against-
Index No. 033000/2018
TOWN OF ORANOETOWN,
Defendant.
-------------------------------X
This Sanctions Order suppleinents and amends the record of the Court's directives issued
at a conference on November 1,2019. More specifically, thisOrder sets forth the sanctions and
penalties levied against defendant and defense counsel based on a myriad of discovery abuses and
several falsestatements made by defense counsel in open court on the record and by Town of
Orangetown ("Town") officials in sworn affidavits subrnitted by those officials.The Court hereby
finds the conduct of defense counsel and defendant to have been frivolous conduct as defined by
Court Rule §l30-1,1(c)(2) and (3). This Order shall serve to comply with the Court Rule §130-1.2
requirement that a writtenorder be issued when sanctions are irñposed.
Background
The factual genesis of this action is set forthin the Court's Decision and Order dated
December 17, 2018 ("the Decision and Order") and will not be repeated here.
Succinctly stated,plaintiff's remaining causes of action seek: (1) a declaratory judgment
to the effect that hisproperty lieswithin an R-15 zone as depicted on four officially filedzoning
maps and not an R-40 zone as designated in a 1991 Town ordinance, (2) a deterrnination that the
Town isestopped from denying that plaintiff's
property lieswithin an R-15 zone, and (3) damages
pursuant to 42 USC §l983 for violating the protections afforded to him under the Equal Protection
Clause of the Fourteenth Amendment.
The Court has been endeavoring to coax and cajole the parties towards completion of
discovery only, to be thwarted by the repeated failureof the defendant and itscounsel to provide
fulland complete discovery and their egregious conduct in doing so.
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The Court's Preliminary E[forts to Complete Discovery
Following the Decision and Order, this matter was scheduled for a status conference on
2019,'
January 26, At that time, the Court directed the parties to: exchange paper demands no
(1)
later than February 20, 2019, respond to such demands no laterthan March
(2) any 19, 2019, and
(3) complete examinations before trialby 15, 2019. In addition to this
May customary discovery,
plaintiff'scounsel requested that the Court directthe defendant to provide him with alltext and
email communications between and among the Town Board members and the Town Attorney
Robert Magrino, Esq. to the subject application for 2018.2
pertaining certain dates in April
Defense counsel resisted production of these items, client privilege.
citing attorney Consequently,
the Court directed the textsand emails to be produced for incamera inspection no laterthan March
19, 2019. A compliance conference was scheduled for May 23, 2019.
By letterdated April 8, 2019, plaintiff'scounsel wrote to the Court to request a discovery
conference since the defendant had not complied with the Court's earlierdirective to respond to
demands.3
the plaintiff'sdiscovery In response, the Court scheduled a conference for April 12,
2019 to address the Town's failureto provide discovery.
By letterdated April 9, 2019, the Town's defense attomey, William J.McPartland, Esq. of
Marshall Dennehey Warner Coleman & Goggin, submitted 3 pages of text messages for incamera
review. These were mcssages exchanged between and among Mr. Magrino, Town Supervisor
Chris Day and Town Councilman Thomas Diviny, Esq. Mr. McPartland rcprcsonted that there
were no emails between and among the decision makers for the dates requested.
On April 12, 2019, counsel appeared before the Court for the conference, After discussion
concerning the status of discovery, the Court directed: (1) plaintiff'scounsel to send a deficiency
letterto defense counsel no laterthan April 24, 2019 outlining the discovery which had not been
provided, (2) defense counsel to respond to the deficiency letterno later than May 17, 2019, and
' matterwas previoúslyassignedtothe
This Hon.Thomas E. Walsh,111,JSC (ret.).
Justice
Walsh recused bimself
from this matter
in July
2018, adjourning
simultaneously the·petition
for60 days and staying
the actionfor30 days.
ThisCourt subsequentlyset a briefing
scheduleon the petition,
2 Plaintiff's
demand was later expanded
to include
all email
and otherwritteri
communications to his
pertaining
application.
3 ThisCourt does not permit motionsexcept in extraordinary
cases. In cases where
partiesfaU to comply
discovery
withthe Court's or to produce
directives discovery, requires
the Court counselto attempt
to resolveany issues
between themselves, which
failing counsel to wrhe
is permitted the Courtto request
a confet'ence
to address the
issue(s) raised.
2
. .
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(3) examinations before trialto be held'no laterthan 2019, The Court also
July 8, ruled that the
text racssages provided by defense counsel were not discoverable. A cornpHance conference was
set forJuly 12, 2019,
On July 12, 2019, counsel again appeared before the Court. At that the Court
time, was
advised that examinations before trialhad not been completed as directed, Once again, the Court
extended the time to complete examinations before this
trial, time to 31, 2019 for plaintiff
and
July
to October 31, 2019 for defendant, A third compliance conference was setfor November 1, 2019.
On September 23, 2019, plaintiff'scounsel again wrote to theCourt intervention
requesting
intothe latestdiscovery dispute,thistime the failureof thedefense to produce emails as previously
directed and, apparently, as agreed to by defense counsel in a telephone conversation. In addition,
plaintiff's
counsel advised that the defense was resistingproducing various individuals, including
the Town Board members, for examination before trial.
Significantly, plaintiff'scounsel noted that
Mr. McPartland's letterof April 9, 2019, transmitting the textmessages to theCourt for /ncamera
review, represented that therewere no email coronmnications between any voting Board member
and theTown Attorney Magrino for the dates surrounding the public hearing in April 2018. The
privilege log supplied by Mr. McPartland with the textmessages belied that assertion.
in response to plaintiff'scounsel's letter,the Court directed allcounsel to appear for yet
another conference on October 3, 2019
The October 4,2019 Conference
On October 4, 2019, counsel appeared before the Court. Dwight Joyce, Esq., appeared for
plaintiff.
Steven·Saal, Esq., also of Marshall Dennchey Warner Coleman & Goggin, appeared for
defendant. During the appearance, the following exchange took place:
THE COURT: So, you're here because Mr. Joyce has complained,
Mr. Saal, that you haven't provided him allthe discovery that the
Court directed, that would include textsand e-mails between the
town attorney and town board members concerning the application,
right?
MR. SAAL: Well, your Honor, we have provided everything to
plaintiffs'
counsel, Regarding the text messages, I believe we can
settle.thatone initially,a few conferences ago, I believe Ms. Meyers
from my office·had appeared, itwas earlier thisyear, your Honor
precluded the text messages as attorney-client privilege (Emphasis
added).
4 The conferencewas adjournedto October to accommodate both counsersschedule. .
4, 2019
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NYSCEF DOC. NO, 94
Plaintiffs'
counsel has allof the e-mails that he has requested.
Mr..Saal continued ...,
MR. SAAL: The production that I just gave to Mr. Joyce now
includes an affidavit from the Town that there is no further e-
[sic)
mails. He has everything, We've produced this all months and
months and months ago, It isour position there is no reason the
depositions thatwere going to be scheduled for theend ofSeptember
thatwere adjoumed Mr. Joyce forthis issue should not have gone
by
forward (Emphasis added).
On thisissue, Mr. Saal concluded
MR. SAAL: It's our position that we've complied with every
paper demand, and that was before the
outstanding discovery
additional response that I justprovided to Mr. Joyce today
courtesy
(Emphasis added).
additional itwas revealed to the Court thatemails which were not
Following discussion,
for incamera inspection existed.In thatregard, Mr. Joyce stated:
previously provided to the Court
JOYCE: Your about 3 o'clockfreceived68
MR, Honor, yesterday
pagesfromthedefendants some e-mails which I already
outlining
affidavit from the IT person where he provides thereare no
had, an
e-mails, The biggest problem I had, your Honor, which I had
other
to Mr. McPartland was thatthe affidavitswhere they
spoken about,
have no limitthem to three days in
say they communication, they
and fm sayingTm not request to text
April of 2018, limiting my
messages to those three days. I want any textmessage and e-mail,
got some of those lastnightebut I got no text [sic]@mphasis
and I
added),
whether the emails had been reviewed incamera, Mr.
When the Court inquired already
no emails had been provided to the Court for review. Only
Saal replied in theaffirmative. In fact,
submitted Mr. McPartland with his letterof April 9, 2019.
text messages were by
advised thatthe defendant had recently provided 20
Mr. Joyce, on the other hand, only
pages of emails.
In response, Mr. Saal stated:
SAAL: There were e-mails, therewere e-mails thatwere under
MR.
log, The from our perspective, your Honor,are
a privilege e-mails,
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the same sum and substance of the topics that were discovered in
the text messages (Emphasis added).
The Court, believing that emails had been again
previously supplied, inquired whether
these emails were the same emails as had been provided.
already
Mr. Saal repeated that theemails were"the same sum and substance of the topics thatwere .
messages"
discovered in the text (Emphasis added).
The Court inquired:
THE COURT: No, I'm sorry,are they the same e-mails?
MR. SAAL: No, these are -
THE COURT: So they're different, so should have been
they
produced to me,
After further colloquoy, the Court continued;
THE COURT: Mr. Saal, I want to see them. Um going to conduct an
in camera inspection of them and I willmake a determinatidn as to
whether they're discoverable. I'm not going to look at them now, but
look
I'll at them sometime later.
After discussion concerning the Town's refusalto produce alldecision makers for
examination before the
trial, Court directed those depositions to be completed by October 31, 2019.
A conference was scheduled for November 1, 2019,
By Court Notice posted on NYSCEF on October 7, 2019, the Court advised the partiesof
the results of the in camera inspection of the emails and directed defendant to provide plaintiff
with numerous emails to which the Court held the privilege did not apply.
Defendant's October 30, 2019 Correspondence
By letterdated October 30, 2019, sent via email at 3:53p.m., Mr. McPartland wrote to the
Court in anticipation of the scheduled November 1, 2019 conference to advise that he had
"discovered"
additional emails which had notpreviously been produced. This, despite Mr. Saal's
repeated clear and unequivocal statement that a//emails had been provided and the affidavitsof
Town Board members and the Town's IT specialist to the same effect. Mr. McPartland advised
that "a representative from the Town Attorney's Office will be at the conference to explain this
issuec" today"
Mr. McPartland continued, "The emails have been produced to counsel (Emphasis
"discovery"
added), Mr. McPartland informed the Court that this had taken place after Mr. Joyce
had already deposed 6 witnesses for the Town and on the eve pf three additional witnesses being
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submitted for deposition. Finally, Mr. McPartland requested an additional 30 days in which to
complete discovery.
Given Mr. McPartland's statemem that there were additional relevant emails that had not
been provided to plaintiff's Mr. SaaPs officials'
counsel, representations and the Town affidavits
that allsuch cmails had been disclosed were false.
clearly
Plaintiff'sResponse to Defendant 's October 30. 2019 Correspondence
Via email at 8f33 a.m on October 31, 2019, Mr. Joyce responded to.Mr. McPartland's letter
by sending a letterdated October30, 2019., complaining of a litanyof discovery abuses, including
conccSing, emails, delaying providing the addresses of former employees, abandoning a Town
witness on the eve of her mmmimtion before trialand directing her to secure her own counsel, and
destroying emails. Perhaps most importantly, Mr. Joyce complained that Mr. McPartland's
statement to the Court that he had produced the allegedly newly discovered emails was untrue,
First,Mr. Joyce discussed the defendant's evolving position c0ñcerning the existence of
emails referable to the subject property and plaintiff,noting that thedefense initiallyclaimed that
Preview
FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -------------------------------------------------------------------- X SAMI MUHAMETAJ and SAMI CONSTRUCTION, NOTICE OF APPEAL Plaintiffs, Index No. 033000/2018 -against- Assigned to: TOWN OF ORANGETOWN, Hon. Paul I. Marx, J.S.C. Defendant. "Town" PLEASE TAKE NOTICE that Defendant Town of Orangetown (the or "Defendant") and non-party, Robert Magrino, Esq., Town Attorney ("Mr. Magrino"), hereby appeal to the Supreme Court, Appellate Division, Second Judicial Department from the Sanctions Order of the Supreme Court of the State of New York, County of Rockland (Hon. Paul I. Marx, J.S.C., presiding) dated November 20, 2019 and entered on November 21, 2019, a copy of which is annexed hereto as Exhibit "A". Dated: White Plains, New York November 27, 2019 KEANE & BEANE, P.C. By: Lai e H. Klein, Esq. Attorneys for Defendant 445 Hamilton 15th FlOOr Avenue, White Plains, New York 10601 (914) 946-4777 1 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 TO: LAW OFFICES OF DWIGHT D. JOYCE, ESQ. Att'n: Dwight D. Joyce, Esq. Attorney for Plaintiffs 2 Joyce Plaza Stony Point, New York 10980 (845) 429-9323 2 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 Supreme Gourt of t11e 9tate of New Worlt Appellate Biniøion: Second [Jubicial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil [a]) Case Title:Set forththe of title thecase as it appears on theswarnsña, notice ofpetitionor orderto For Court ofOriginal Instance show causeby which the matterwas or is to be mml, or as nmenaga SAMI MUHAMETAJ and SAMI CONSTRUCTION, Plaintiffs, Date Notice of Appeal Filed - against- TOWN OF ORANGETOWN, For Appellate Division Defendant. O CivilAction CPLR article 78 Proceeding Appeal O Transferred Proceeding O CPLR article 75 Arbitration O SpecialProceeding Other OriginalProceedings O CPLR Article 78 ActionCommenced under CPLR O CPLR Article 78 O Executive Law § 298 214-g Habeas Corpus Proceeding Eminent Domain O CPLR 5704 Review Labor Law 220 or 220-b Public Officers Law § 36 Real Property Tax Law § 1278 Nature of Suit: Check up to three of the following categories which best reflect the nature of the case. Administrative Review | O Business Relationships O Commercial O Contracts Declaratory Judgment O Domestic Relations O Election Law O Estate Matters O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole O Real Property O Statutory O Taxation Torts (other than foreclosure) InformationalStatement - Civil 3 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 Paper Appealed From (Check one only): Ifan appeal has been taken from more than one order or judgment by the of filing this notice of appeal, please indicate the below information for each such order or a judgrnent appealed from on a separate sheet of paper. O Amended Decree O Determination G] Order O Resettled Order O Amended Judgemêñt O Finding O Order & Judgment O Ruling O Amended Order O Interlocutory Decree O Partial Decree O Other (specify): O Decision O Interlocutory Judgment O Resettled Decree O Decree O Judgment O Resettled Judgment Court: Supreme Court County: Rockland Dated: Navember 20, 2019 Entered: November 21, 2019 Judge (name Hon. Paul I. Marx in full): Index No.:033000/2018 Stage: G] Interlocutory O Final O Post-Final Trial: O Yes G] No If Yes: O Jury O Non-Jury Prior Unperfected Appeal and Related Case Information Are any appeals arisingin thesame action or praceeding currently pendlim in the court? O Yes E No If Yes,please set forth the Appellate DivisionCase Number assigned to each such appeal. Where apprepriate, indicate whether there is anyrelated action or proceeding now inany court of thisor any other jurisdiction,and the if so, status of the case: . Commenced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed: Statute authorizing ccmmencem-ñt of proceeding inthe Appellate Division: Court: Choose Court County: Choose County Judge (name in full): | Order of Transfer Date: Court: Choose Court County: Choose County Judge (name in full): Dated: Description of Appeal, or Application and Statamant of Issues Precame½y Description: Ifan appeal, brieflydescribe the paper appealed from. If theappeal is from an order, specify the relief requested and whether the motion was granted or denied. Ifan original proceeding commenced in thiscourt or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. Ifan app!!cation under CPLR 5704, brieflydescribe the nature of the ex parte order to be reviewed. Statement Informational - Civil 4 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 Issues: Specify the issuesproposed to be raised on the appeal, preceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specificreliefsought on appeal. 1. Should thisCourt reverse the Sanctions Order of the Supreme Court ofthe State of New York, Rockland County (Honorable Paul I. Marx,dated November 20, 2019) which: (i)imposed rñóñetary sanctions upon the Town (inthe form of fees and costs to be paid to Plaintiffs Sami Muhametaj and Sami Construction, as wellas costs forstenographers, transcripts,video recordings, and an IT Consultant); permitted (ii) Plaintiffs to conduct furtherexaminations before of trial all individuals who were previously deposed; directed (iii) the Town to participatein electreñic discovery designed, directed and overseen by an IT Consultant retained by counsel forPlaintiffsSami Muhametaj and Sami Construction; (iv)directed the Town to conduct a search forádditiciialaudio and/or video recordings; (v) directed the Town to conduct additionaldocument discovery, including electronic memoranda and correspondeñce; (vi)found thatinforrñation indicated a substantial likelihood that the Town Attorney (Robert Magriñõ, Esq.) committed a substantialviolation ofthe Rules of Professional Conduct and outlined the reasons therefore; and referred (vii) Robert Magrino, Esq. to the Grievance Committee. Party Information Instructions: Fillinthe name of each party to the action or proceeding, one name per line. If this form is tobe filed for an appeal, indicatethe status of the party in thecourt of originalinstance and his,her,or itsstatus in thiscourt, if any.If this form is tobe filed for a proceeding caniñienced inthis court, fill in only the party's name and his,her, or itsstatus in this court. No. Party Name Original Status Appellate Division Status 1 Sami Muhametaj Plaintiff Respondent 2 sami construction Plaintiff Respondent 3 Town of Orangetown Defendant Appellant 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Informational Staterñent- Civil 5 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 Instructions: Fillin thenames of the attorneys or firmsfor the respective parties. If this form is tobe filedwith the notice of petitionor order to show cause by which a specialproceeding is tobe cominenced in theAppellate Division, only the name of the attorney for the petitioner need be provided, In the event that a litigantrepresents herselfor Se" himself,the box marked "Pro must be checked and the apprepriate information forthat litigantmust be supplied inthe spaces provided. ___.. Attorney/Firm Name: Dwight D. Joyce, Esq. / Law Offices of Dwight D. Joyce, Esq. Address: 2 Joyce Plaza City:Stony Point State: NY Zip:10980 Telepherie No: 845-429-9323 E-mail Address:office@dwightjoycelaw.com Attorney Type: 2 Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (setforth party number(s) from table above):1 Attorney/Firm Name: Dwight D. Joyce, Esq. / Law Offices of Dwight D. Joyce, Esq. Address: 2 JoycePlaza City:Stony Point State: NY Zip:10980 Telephone No: 845-429-9323 E-mail Address: office@dwightJoycelaw.com Attorney Type: 8 Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (setforth party number(s) from table above):2 Attorney/Firm Name: Lance H. Klein, Esq. / Keane & Beane, P.C. Address: 445 Hamilton Ave., 15th Fl. City:WhitePlains State: NY Zip:10601 Telephone No: 914-946-4777 E-mail Address: LKlein@kblaw.com Attorney Type: 8 Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (setforth party number(s) from table above):3 Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice or Parties Represented (setforth party number(s) from table above): Party Attorney/Firm Name: Address: City: State: Zip: | Te|êphone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (setforth party number(s) from table above): Attorney/Firm Name: Address: City: | State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (setforth party number(s) from table above): Informational Statement - Civil 6 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 INDEx NO. 033000/2018 NYSCEF DOC. NO. 94 . RECEIVED NYSCEF: 11/21/2019 SUPREME COURT OF YORK· THESTATE OF NEW To commence the statutory COUNTY OF ROCKLAND time period for appeals as of HON. PAUL I.MARX, J.S.C. right (CPLR 5513 [al),you ----..------....___.----- -----X are advised to serve a copy SAMI MUHAMETAJ and SAMI CONSTRUCTION, of this with notice of order, entry, upon allparties. Plaintiffs, SANCTIONS ORDER -against- Index No. 033000/2018 TOWN OF ORANOETOWN, Defendant. -------------------------------X This Sanctions Order suppleinents and amends the record of the Court's directives issued at a conference on November 1,2019. More specifically, thisOrder sets forth the sanctions and penalties levied against defendant and defense counsel based on a myriad of discovery abuses and several falsestatements made by defense counsel in open court on the record and by Town of Orangetown ("Town") officials in sworn affidavits subrnitted by those officials.The Court hereby finds the conduct of defense counsel and defendant to have been frivolous conduct as defined by Court Rule §l30-1,1(c)(2) and (3). This Order shall serve to comply with the Court Rule §130-1.2 requirement that a writtenorder be issued when sanctions are irñposed. Background The factual genesis of this action is set forthin the Court's Decision and Order dated December 17, 2018 ("the Decision and Order") and will not be repeated here. Succinctly stated,plaintiff's remaining causes of action seek: (1) a declaratory judgment to the effect that hisproperty lieswithin an R-15 zone as depicted on four officially filedzoning maps and not an R-40 zone as designated in a 1991 Town ordinance, (2) a deterrnination that the Town isestopped from denying that plaintiff's property lieswithin an R-15 zone, and (3) damages pursuant to 42 USC §l983 for violating the protections afforded to him under the Equal Protection Clause of the Fourteenth Amendment. The Court has been endeavoring to coax and cajole the parties towards completion of discovery only, to be thwarted by the repeated failureof the defendant and itscounsel to provide fulland complete discovery and their egregious conduct in doing so. 1 of 20 7 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 INDEX NO. 033000/2018 NYSCEF DOC. NO, 94 RECEIVED NYSCEF: 11/21/2019 The Court's Preliminary E[forts to Complete Discovery Following the Decision and Order, this matter was scheduled for a status conference on 2019,' January 26, At that time, the Court directed the parties to: exchange paper demands no (1) later than February 20, 2019, respond to such demands no laterthan March (2) any 19, 2019, and (3) complete examinations before trialby 15, 2019. In addition to this May customary discovery, plaintiff'scounsel requested that the Court directthe defendant to provide him with alltext and email communications between and among the Town Board members and the Town Attorney Robert Magrino, Esq. to the subject application for 2018.2 pertaining certain dates in April Defense counsel resisted production of these items, client privilege. citing attorney Consequently, the Court directed the textsand emails to be produced for incamera inspection no laterthan March 19, 2019. A compliance conference was scheduled for May 23, 2019. By letterdated April 8, 2019, plaintiff'scounsel wrote to the Court to request a discovery conference since the defendant had not complied with the Court's earlierdirective to respond to demands.3 the plaintiff'sdiscovery In response, the Court scheduled a conference for April 12, 2019 to address the Town's failureto provide discovery. By letterdated April 9, 2019, the Town's defense attomey, William J.McPartland, Esq. of Marshall Dennehey Warner Coleman & Goggin, submitted 3 pages of text messages for incamera review. These were mcssages exchanged between and among Mr. Magrino, Town Supervisor Chris Day and Town Councilman Thomas Diviny, Esq. Mr. McPartland rcprcsonted that there were no emails between and among the decision makers for the dates requested. On April 12, 2019, counsel appeared before the Court for the conference, After discussion concerning the status of discovery, the Court directed: (1) plaintiff'scounsel to send a deficiency letterto defense counsel no laterthan April 24, 2019 outlining the discovery which had not been provided, (2) defense counsel to respond to the deficiency letterno later than May 17, 2019, and ' matterwas previoúslyassignedtothe This Hon.Thomas E. Walsh,111,JSC (ret.). Justice Walsh recused bimself from this matter in July 2018, adjourning simultaneously the·petition for60 days and staying the actionfor30 days. ThisCourt subsequentlyset a briefing scheduleon the petition, 2 Plaintiff's demand was later expanded to include all email and otherwritteri communications to his pertaining application. 3 ThisCourt does not permit motionsexcept in extraordinary cases. In cases where partiesfaU to comply discovery withthe Court's or to produce directives discovery, requires the Court counselto attempt to resolveany issues between themselves, which failing counsel to wrhe is permitted the Courtto request a confet'ence to address the issue(s) raised. 2 . . 2 of 20 8 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 INDEx NO. 033000/2018 NYSCEF DOC, NO. 94 RECEIVED NYSCEF: 11/21/2019 (3) examinations before trialto be held'no laterthan 2019, The Court also July 8, ruled that the text racssages provided by defense counsel were not discoverable. A cornpHance conference was set forJuly 12, 2019, On July 12, 2019, counsel again appeared before the Court. At that the Court time, was advised that examinations before trialhad not been completed as directed, Once again, the Court extended the time to complete examinations before this trial, time to 31, 2019 for plaintiff and July to October 31, 2019 for defendant, A third compliance conference was setfor November 1, 2019. On September 23, 2019, plaintiff'scounsel again wrote to theCourt intervention requesting intothe latestdiscovery dispute,thistime the failureof thedefense to produce emails as previously directed and, apparently, as agreed to by defense counsel in a telephone conversation. In addition, plaintiff's counsel advised that the defense was resistingproducing various individuals, including the Town Board members, for examination before trial. Significantly, plaintiff'scounsel noted that Mr. McPartland's letterof April 9, 2019, transmitting the textmessages to theCourt for /ncamera review, represented that therewere no email coronmnications between any voting Board member and theTown Attorney Magrino for the dates surrounding the public hearing in April 2018. The privilege log supplied by Mr. McPartland with the textmessages belied that assertion. in response to plaintiff'scounsel's letter,the Court directed allcounsel to appear for yet another conference on October 3, 2019 The October 4,2019 Conference On October 4, 2019, counsel appeared before the Court. Dwight Joyce, Esq., appeared for plaintiff. Steven·Saal, Esq., also of Marshall Dennchey Warner Coleman & Goggin, appeared for defendant. During the appearance, the following exchange took place: THE COURT: So, you're here because Mr. Joyce has complained, Mr. Saal, that you haven't provided him allthe discovery that the Court directed, that would include textsand e-mails between the town attorney and town board members concerning the application, right? MR. SAAL: Well, your Honor, we have provided everything to plaintiffs' counsel, Regarding the text messages, I believe we can settle.thatone initially,a few conferences ago, I believe Ms. Meyers from my office·had appeared, itwas earlier thisyear, your Honor precluded the text messages as attorney-client privilege (Emphasis added). 4 The conferencewas adjournedto October to accommodate both counsersschedule. . 4, 2019 3 3 of 20 9 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 INDEX NO. 033000/2018 RECEIVED NYSCEF: 11/21/2019 NYSCEF DOC. NO, 94 Plaintiffs' counsel has allof the e-mails that he has requested. Mr..Saal continued ..., MR. SAAL: The production that I just gave to Mr. Joyce now includes an affidavit from the Town that there is no further e- [sic) mails. He has everything, We've produced this all months and months and months ago, It isour position there is no reason the depositions thatwere going to be scheduled for theend ofSeptember thatwere adjoumed Mr. Joyce forthis issue should not have gone by forward (Emphasis added). On thisissue, Mr. Saal concluded MR. SAAL: It's our position that we've complied with every paper demand, and that was before the outstanding discovery additional response that I justprovided to Mr. Joyce today courtesy (Emphasis added). additional itwas revealed to the Court thatemails which were not Following discussion, for incamera inspection existed.In thatregard, Mr. Joyce stated: previously provided to the Court JOYCE: Your about 3 o'clockfreceived68 MR, Honor, yesterday pagesfromthedefendants some e-mails which I already outlining affidavit from the IT person where he provides thereare no had, an e-mails, The biggest problem I had, your Honor, which I had other to Mr. McPartland was thatthe affidavitswhere they spoken about, have no limitthem to three days in say they communication, they and fm sayingTm not request to text April of 2018, limiting my messages to those three days. I want any textmessage and e-mail, got some of those lastnightebut I got no text [sic]@mphasis and I added), whether the emails had been reviewed incamera, Mr. When the Court inquired already no emails had been provided to the Court for review. Only Saal replied in theaffirmative. In fact, submitted Mr. McPartland with his letterof April 9, 2019. text messages were by advised thatthe defendant had recently provided 20 Mr. Joyce, on the other hand, only pages of emails. In response, Mr. Saal stated: SAAL: There were e-mails, therewere e-mails thatwere under MR. log, The from our perspective, your Honor,are a privilege e-mails, 4 4 of 20 10 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 INDEX NO. 033000/2018 NYSCEF DOC. No. 94 RECEIVED NYSCEF: 11/21/2019 the same sum and substance of the topics that were discovered in the text messages (Emphasis added). The Court, believing that emails had been again previously supplied, inquired whether these emails were the same emails as had been provided. already Mr. Saal repeated that theemails were"the same sum and substance of the topics thatwere . messages" discovered in the text (Emphasis added). The Court inquired: THE COURT: No, I'm sorry,are they the same e-mails? MR. SAAL: No, these are - THE COURT: So they're different, so should have been they produced to me, After further colloquoy, the Court continued; THE COURT: Mr. Saal, I want to see them. Um going to conduct an in camera inspection of them and I willmake a determinatidn as to whether they're discoverable. I'm not going to look at them now, but look I'll at them sometime later. After discussion concerning the Town's refusalto produce alldecision makers for examination before the trial, Court directed those depositions to be completed by October 31, 2019. A conference was scheduled for November 1, 2019, By Court Notice posted on NYSCEF on October 7, 2019, the Court advised the partiesof the results of the in camera inspection of the emails and directed defendant to provide plaintiff with numerous emails to which the Court held the privilege did not apply. Defendant's October 30, 2019 Correspondence By letterdated October 30, 2019, sent via email at 3:53p.m., Mr. McPartland wrote to the Court in anticipation of the scheduled November 1, 2019 conference to advise that he had "discovered" additional emails which had notpreviously been produced. This, despite Mr. Saal's repeated clear and unequivocal statement that a//emails had been provided and the affidavitsof Town Board members and the Town's IT specialist to the same effect. Mr. McPartland advised that "a representative from the Town Attorney's Office will be at the conference to explain this issuec" today" Mr. McPartland continued, "The emails have been produced to counsel (Emphasis "discovery" added), Mr. McPartland informed the Court that this had taken place after Mr. Joyce had already deposed 6 witnesses for the Town and on the eve pf three additional witnesses being 5 5 of 20 11 of 28 FILED: ROCKLAND COUNTY CLERK 11/27/2019 03:34 PM INDEX NO. 033000/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/27/2019 INDEX NO. 033000/2018 NYSCEF DOC. lÓO. 94 RECEIVED NYSCEF: -11/21/2019 submitted for deposition. Finally, Mr. McPartland requested an additional 30 days in which to complete discovery. Given Mr. McPartland's statemem that there were additional relevant emails that had not been provided to plaintiff's Mr. SaaPs officials' counsel, representations and the Town affidavits that allsuch cmails had been disclosed were false. clearly Plaintiff'sResponse to Defendant 's October 30. 2019 Correspondence Via email at 8f33 a.m on October 31, 2019, Mr. Joyce responded to.Mr. McPartland's letter by sending a letterdated October30, 2019., complaining of a litanyof discovery abuses, including conccSing, emails, delaying providing the addresses of former employees, abandoning a Town witness on the eve of her mmmimtion before trialand directing her to secure her own counsel, and destroying emails. Perhaps most importantly, Mr. Joyce complained that Mr. McPartland's statement to the Court that he had produced the allegedly newly discovered emails was untrue, First,Mr. Joyce discussed the defendant's evolving position c0ñcerning the existence of emails referable to the subject property and plaintiff,noting that thedefense initiallyclaimed that