Sourced from newyorklawjournal.com
A Manhattan Supreme Court judge has levied a $317,000 sanction against a law firm and two of its partners in a matrimonial case, saying they made “misrepresentations and knowingly false statements to the court.”
Justice Ellen Gesmer, ruling in the five-year-long case of L.G. v. M.G., 310479/10, said Abe Konstam and Madeline Nisonoff, partners at Mallow, Konstam, Mazur, Bocketti & Nisonoff, had prolonged the litigation by bringing frivolous motions directing their clients not to comply with a subpoena.
Konstam and Nisonoff, who jointly represent the husband and his parents, also were faulted for failing to notify their adversary that the husband did not wish to proceed with hearings until shortly before the issues were to be heard.
Gesmer said they had “concealed pertinent information relative to the parties’ matrimonial litigation” and ordered that her ruling be sent to the Departmental Disciplinary Committee.
The attorneys plan to appeal the sanction.
“The decision is clearly erroneous,” Konstam said in a brief interview Friday. “We have every expectation that it will be reversed on appeal.”
Konstam, in practice since 1975, said he was sanctioned by a court only once, over 30 years ago. He said Nisonoff, who was admitted in 1992, had never been sanctioned.
Gesmer had sanctioned the husband in the case in 2013, ordering him to pay $200,000 to the wife for violating the court’s orders and engaging in dilatory and deceptive tactics that required the wife to bring numerous motions.
The 2013 order also sanctioned the husband’s parents, ordering them to pay $213,000 for refusing to comply with the subpoena.
The order is under appeal.
Gesmer held a hearing in December on the attorney sanctions motion, which sought nearly $1 million, and found the partners’ testimony “not credible.” Konstam “was evasive and uncooperative, even when identifying the bills from his own law firm” and Nisonoff’s “statements were contradicted by her own exhibits,” the Aug. 21 opinion said.
Gesmer said Nisonoff admitted she had advised her clients not to comply with the subpoena “because she disagreed with the denial of her oral motion to quash on the previous day.”
The opinion recited the bitter and tragic nature of the case, noting that the couple had married in their late 20s, had a child, and then a year later the husband had a brain aneurism that resulted in his being in a coma for several weeks. He has lived in a rehabilitation facility since 2008.
Citing a breakdown in the marriage caused by the intervention of the husband’s parents, the wife sued for divorce in 2010.
Gesmer said the husband’s parents had taken charge of the matrimonial litigation. The opinion quoted an email they sent to the Konstam firm directing them to “go after [the mother] with a vengeance.”
The emails also disclosed that the husband did not share his parents’ desire to seek custody of and then visitation with the daughter. Gesmer noted it was the parents who had paid all of Konstam’s legal fees.
Emails produced by the wife’s attorney at the sanctions hearing showed the husband had wanted to discontinue a proceeding seeking visitation.
Gesmer said Konstam and the parents nevertheless went ahead with extensive briefings and a six-day trial on the issue.
A separate proceeding was brought by the husband repudiating an agreement to arbitrate any disputes with the wife before a Beth Din, the Jewish religious court. Gesmer said the husband initially denied ever signing the agreement but, after extensive motion practice, admitted the signature was his.
The judge noted that, despite his condition, the husband had “appeared at every court proceeding, submitted numerous sworn statements to the court, and testified both at his deposition and at trial. There has never been an application for an appointment of a guardian or a guardian ad litem.”
The wife is represented by Karen Rosenthal, a partner at Bender Rosenthal & Richter.