Schaefer v. BE4, LLC

77 Misc. 3d 137(A), 2022 NY Slip Op 51354(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 22, 2022
• Docket: 2019-1010 S C
• Status: Unpublished

Opinion

Schaefer v BE4, LLC (2022 NY Slip Op 51354(U)) [*1]

Schaefer v BE4, LLC

2022 NY Slip Op 51354(U) [77 Misc 3d 137(A)]

Decided on December 22, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : TIMOTHY S. DRISCOLL, J.P., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2019-1010 S C

Randy J. Schaefer, Esq., as Receiver of Rents and Profits of Real Properties, Known as and Located at 8 Judith Driver, Greenlawn, New York, Respondent,

against

BE4, LLC, Bruce Engel and Jureli, LLC, Appellants, Judith N. Berger and The Coalition of Landlords, Homeowners and Merchants, Inc., Nonparty-Appellants.

Judith N. Berger, for appellants and nonparty-appellants. Randy Schaefer, for respondent.

Appeal from two orders of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), both dated May 1, 2019. The first order, insofar as appealed from as limited by the brief: (1) denied the branch of a motion by BE4, LLC, Bruce Engel, and Jureli, LLC (collectively respondents) seeking to direct petitioner to pay the sum of $31,710.45 to Bruce Engel, as managing agent of BE4, LLC and Jureli, LLC; and (2) awarded costs in the sum of $2,250 against respondents and against nonparty "Judith Berger, Esq. as an attorney employed by the Coalition of Landlords, Homeowners and Merchants, Inc.," payable to petitioner, and sanctions in the sum of $250, also against respondents and that nonparty, payable to the New York State Lawyers Fund for Client Protection. The second order, characterized as an "addendum decision," denied respondents' request for recusal, set forth in, among other things, reply papers on their motion.

ORDERED that so much of the appeal as is from the second May 1, 2019 order, characterized as an "addendum decision," is dismissed on the ground that no appeal lies as of right from an order that does not decide a motion made upon notice (see UDCA 1702 [a] [2]; [*2]CPLR 2211; Sholes v Meagher, 100 NY2d 333 [2003]), and leave to appeal has not been granted; and it is further,

ORDERED that so much of the appeal from the first May 1, 2019 order as is by nonparty The Coalition of Landlords, Homeowners and Merchants, Inc. is dismissed, as The Coalition of Landlords, Homeowners and Merchants, Inc. is not aggrieved by the first May 1, 2019 order; and it is further,

ORDERED that the first May 1, 2019 order, insofar as appealed from, is reversed, without costs, the branch of respondents' motion seeking to direct petitioner to pay the sum of $31,710.45 to Bruce Engel, as managing agent of BE4, LLC and Jureli, LLC is dismissed, and the award of costs in the sum of $2,250 and sanctions in the sum of $250 is vacated.

Petitioner was appointed, in a prior criminal case, as the receiver of rents for premises at 8 Judith Drive, Greenlawn, New York. She commenced this proceeding, as receiver of rents, to hold BE4, LLC, Bruce Engel and Jureli, LLC (collectively respondents) in civil contempt pursuant to Judiciary Law § 753. By decision and order dated April 25, 2016 (Schaefer v BE4, LLC, 51 Misc 3d 92 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]), this court dismissed the petition.

In 2019, respondents moved in the District Court to "resettle" this court's April 25, 2016 decision and order dismissing the civil contempt petition. In effect, respondents sought the release by the court of $9,000 which had been paid into court in order to obtain a stay in the prior appeal, and reimbursement from petitioner of $31,710.45 which had been included in the real property tax bills on the premises for 2014 and 2015, and paid by respondent BE4, LLC to the Receiver of Taxes for the Town of Huntington to cover the sums the Town had paid to petitioner in connection with her work as receiver.

In an order dated April 5, 2019, the District Court (C. Stephen Hackeling, J.), on its own motion, ordered respondents, their attorney, nonparty Judith N. Berger, Esq., and nonparty The Coalition of Landlords, Homeowners and Merchants to show cause why they should not be sanctioned and why fees should not be assessed against them. By order dated May 1, 2019 (the first May 1, 2019 order), the District Court (C. Stephen Hackeling, J.) granted the branch of respondents' motion seeking the remittance of $9,000 held by the District Court of Suffolk County, denied the branch of respondents' motion seeking the recovery of $31,710.45, and awarded monetary sanctions against respondents and against nonparty "Judith Berger, Esq. as an attorney employed by the Coalition of Landlords, Homeowners and Merchants, Inc." In a separate order, characterized as an "addendum decision," dated May 1, 2019 (the second May 1, 2019 order), the court denied respondents' request for recusal that they had made in reply papers on their motion, but invited respondents to make a formal motion seeking that relief.

Respondents, nonparty attorney Berger, and nonparty The Coalition of Landlords, Homeowners and Merchants, Inc. appeal, as limited by their brief, from so much of the first May 1, 2019 order as denied the branch of respondents' motion seeking the recovery of $31,710.45, and awarded costs and sanctions pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.2. They also appeal the second May 1, 2019 order, characterized as an "addendum decision."

So much of the appeal as is from the second May 1, 2019 order characterized as an "addendum decision" is dismissed as the paper is not appealable as of right because it did not [*3]decide a motion made upon notice (see UDCA 1702 [a] [2]; Rene v Abrams, 193 AD3d 1001 [2021]; Reyes v Eleftheria Rest. Corp., 162 AD3d 808 [2018]; see also Sholes v Meagher, 100 NY2d 333, 335 [2003]), and we decline to grant leave to appeal. So much of the appeal from the first May 1, 2019 as is by The Coalition of Landlords, Homeowners and Merchants, Inc., which entity is not a party to this litigation and was not sanctioned by the District Court in the first May 1, 2019 order deciding respondents' motion, is dismissed as it is not aggrieved by that order (see CPLR 5511).

Since this court's dismissal of the petition in 2016 finally terminated this proceeding, there was no longer a proceeding pending before the District Court when respondents made their motion. Consequently, the District Court lacked jurisdiction to entertain the branch of respondents' motion seeking the recovery of $31,710.45 (see Matter of Birch Tree Partners, LLC v Zoning Bd. of Appeals of Town of E. Hampton, 90 AD3d 749 [2011]; Sottile v Islandia Home for Adults, 278 AD2d 482 [2000]; Matter of Sweet v Sanella, 46 AD2d 688 [1974]) and, thus, that branch of the motion should have been dismissed rather than denied on the merits.

The District Court awarded costs and sanctions against respondents and attorney Berger pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (a). That rule empowers a court to award costs or sanctions or both "only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate." Here, the court's stated reasons are based upon the merits of the branch of the motion seeking the recovery of $31,710.45, which branch the court should have dismissed, rather than deciding it on the merits. Thus, so much of the May 1, 2019 order as awarded costs and sanctions against respondents and against nonparty "Judith Berger, Esq. as an attorney employed by the Coalition of Landlords, Homeowners and Merchants, Inc." based upon purported frivolous merits cannot be sustained.

Accordingly, the first May 1, 2019 order, insofar as appealed from, is reversed, and the branch of respondents' motion seeking to direct petitioner to pay the sum of $31,710.45 to Bruce Engel, as managing agent of BE4, LLC and Jureli, LLC is dismissed, and the award of costs in the sum of $2,250 and sanctions in the sum of $250 is vacated.

DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2022