Wilson v. Wilson

Kymberly Robinson was defendant’s counsel of record in this matrimonial action when, on July 12, 2010, Supreme Court received a letter purportedly authored by her stating that the matter had settled and the parties were requesting that a conference with the court scheduled for the next day be adjourned.^[1] Notwithstanding this letter, plaintiff’s counsel ap

On July 16, 2010, W. Bradney Griffin, at Robinson’s request, appeared with defendant at the conference and was substituted as his counsel. A scheduling order for the action was issued by Supreme Court, directing plaintiffs counsel to submit her billing records for the “aborted conference of July 13, 2010, for the [cjourt to consider possible sanctions against [Robinson].”^[3] After it reviewed plaintiffs proposed bill of services,^[4] the court directed that plaintiff submit an order directing Robinson to pay counsel fees, but did not set the amount.

Meanwhile, Robinson retained her own counsel, who contacted Supreme Court and requested permission to present submissions explaining why Robinson failed to appear at the July 13, 2010 conference and detailing why she had no involvement in the preparation of the settlement letter that was sent to the court. The court advised Robinson’s counsel that he could submit “a Notice of Appearance to Chambers, stating briefly your position relative to plaintiff’s pending application for counsel fees. Upon receipt of same, [the court] will set a deadline for any further submissions.” A week later, Robinson’s counsel filed a notice of appearance with a letter stating that, prior to the July 13 conference, Nabwangu had assumed responsibility for representing defendant in the matrimonial action and, without Robinson’s knowledge, had drafted the letter that was sent to the court advising that the matter had settled. Counsel further stated that Robinson denied signing the letter, had no involvement in its preparation, and welcomed “an opportunity to present evidence or argument in a more formal manner.”

Weeks later, Supreme Court issued a decision finding that

Contrary to plaintiffs contention, Robinson’s payment of the sanction does not render her challenge to the court order moot. The terms of the order did not stay or suspend the payment of these costs and the adverse impact a sanction may have on Robinson’s professional reputation is self-evident (see Matter of Seagroatt Floral Co. [Riccardi], 78 NY2d 439 , 448 n [1991]).^[5] Moreover, in our view, Supreme Court’s determination that Robinson was responsible for the submission of the settlement letter is not supported by the record. While the representations in the letter regarding the status of this action were undoubtedly material and false — and, as such, constitute frivolous conduct (see 22 NYCRR 130-1.1 [c] [3]) — it is by no means clear from the evidence in the record that Robinson authored the letter or was responsible for it being sent to the court. While the letter bore her name and her apparent signature, Robinson, through counsel, denied signing it or even knowing of its existence. We also note that no other evidence has been presented establishing that Robinson had a hand in the creation of this letter and, on the day before the conference, plaintiffs counsel acknowledged speaking with Nabwangu, and not Robinson, about a possible settlement of the action. As a result, any sanction based upon a finding that Robinson was responsible for this letter is not supported by the record evidence and must be vacated.

We are also of the view that while Robinson’s failure to attend the court conference and file a proper substitution of counsel form may warrant the imposition of court costs (see 22 NYCRR 130-2.1), neither, on the facts presented, constitutes sanctionable conduct. This is especially true given the absence of any evidence that this failure to file the form or attend the conference was part of a deliberate effort to delay these proceedings. As for the imposition of costs, it is undisputed that on the