FILED: NEW YORK COUNTY CLERK 10/14/ :12 PM INDEX NO /2015 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 10/14/2016

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1 FILED: NEW YORK COUNTY CLERK 10/14/ :12 PM INDEX NO /2015 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 10/14/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ANTON KERN, Index No: /2015 -against- NATHALIE KARG, Plaintiff, Hon. Manuel J. Mendez Part 13 Motion Seq. No. 002 Defendant. DEFENDANT NATHALIE KARG S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION FOR SANCTIONS GROSSMAN LLP Judd B. Grossman, Esq. Lindsay E. Hogan, Esq. Amanda M.F. Bakale, Esq. 745 Fifth Avenue, 5th Floor New York, New York Telephone: (646) Attorneys for Nathalie Karg 1 of 13

2 Table of Contents PRELIMINARY STATEMENT... 1 LEGAL ARGUMENT... 2 I. PLAINTIFF S COUNSEL SHOULD BE SANCTIONED FOR FAILING TO APPEAR AT THE ORAL ARGUMENT WITHOUT CAUSE... 2 II. PLAINTIFF AND HIS ATTORNEY HAVE ABUSED THE JUDICIAL PROCESS... 4 A. Plaintiff and His Counsel Have Filed Harassing Litigations Against Karg... 5 B. Plaintiff s Counsel Has a History of Filing Duplicative Actions for Improper Purposes... 6 III. PLAINTIFF S COLLATERAL ATTACK ON THE MATRIMONIAL PROCEEDINGS HAS NO GOOD-FAITH BASIS IN LAW OR FACT... 9 CONCLUSION of 13

3 Table of Authorities Cases Asman v. Durst, 98 A.D.3d 1068, 951 A.D.3d 229 (2d Dep t 2012)... 4 Borstein v. Henneberry, 132 A.D.3d 447, 17 N.Y.S.3d 414 (1st Dep t 2015)... 5 Crandall v. Bernard, Overton & Russell, 133 A.D.2d 878, 520 N.Y.S.2d 237 (3d Dep t 1987)... 8 Heilbut v. Heilbut, 18 A.D.3d 1, 792 N.Y.S.2d 419 (1st Dep t 2005)... 5 Levy v. Carol Mgmt. Corp., 260 A.D.2d 27, 698 N.Y.S.2d 226 (1st Dep t 1999) Lvovsky v. Breeznan, Index No /15, 2016 N.Y. Misc. LEXIS 428 (Sup. Ct. N.Y. Co. Feb. 9, 2016)... 1, 7 Maroulis v. 64 St.-Third Ave. Assocs., 77 N.Y.2d 831 (1991) Montalvo v. J.P. Morgan Chase and Co., Index No. 4221/09, 2009 WL (Sup. Ct. Kings Co., Dec. 18, 2009)... 8 Pasternack v. Laboratory Corp. of America Holdings, 27 N.Y.3d 817 (June 30, 2016)... 2, 11 Seldon v. Crow, Index No /12, 2014 N.Y. Misc. LEXIS 194 (Sup. Ct. N.Y. Co. Jan. 22, 2014)... 8 Timoney v. Newmark & Co. Real Estate, 299 A.D.2d 201, 750 N.Y.S.2d 271 (1st Dep t 2002) Statutes 22 NYCRR , NYCRR , 3, 4 ii 3 of 13

4 Defendant Nathalie Karg, by and through her undersigned counsel, respectfully submits this memorandum of law in support of her motion for sanctions against Plaintiff Anton Kern and his counsel, Yonatan S. Levoritz, Esq., under 22 NYCRR (a) and (a). PRELIMINARY STATEMENT I am appalled. This is abuse. This is abusive. These are the words that Justice Tandra L. Dawson used to admonish Levoritz for filing numerous duplicative lawsuits stemming from a single matrimonial dispute. And those are the same words that this Court recited earlier this year in finding that the conduct of Levoritz s co-counsel in those cases was frivolous and sanctionable where it was intended to harass their client s wife. 1 Those pointed rebukes are equally applicable here, where Plaintiff s counsel filed this lawsuit that is entirely duplicative of the long-running matrimonial action the third such suit he has filed to harass Karg even though, as this Court held in dismissing this suit, well-settled New York law does not permit such collateral attacks on matrimonial orders through plenary proceedings. (Ex. 2 A at 1.) The matrimonial court here already reprimanded Plaintiff s counsel for this pattern of filing lawsuits in different courts in different parts of the state, which seek relief related to, and sometimes duplicative of the issues in the matrimonial action, (Ex. B at 23), even though a cursory analysis revealed that the claims could have easily been made as part of the instant [Matrimonial Action], and that there was no necessity or merit to filing an action in another county. (Ex. D at 7.) In addition to blatant forum shopping, Plaintiff and his counsel filed this lawsuit without any good-faith legal basis where New York does not permit fraud claims based 1 See Lvovsky v. Breeznan, Index No /15, 2016 N.Y. Misc. LEXIS 428, at *2-3, 8-9 (Sup. Ct. N.Y. Co. Feb. 9, 2016) (Mendez, J.) (quoting Index No /15, Opp. Papers, Doc. No. 31 at 94). 2 Exhibit refers to the exhibits to the October 13, 2016 Affirmation of Amanda M.F. Bakale, Esq., filed in support of Defendant s motion. 4 of 13

5 on litigation action (Ex. A at 1), and the New York Court of Appeals has rejected the third-party reliance theory upon which Plaintiff and his counsel attempted to ground their fraud claims. See Pasternack v. Laboratory Corp. of America Holdings, 27 N.Y.3d 817, 829 (N.Y. June 30, 2016). And while counsel s failure to appear at oral argument on the dismissal motion without notice or explanation, or for that matter an apology was not necessary to this Court s ruling, it certainly highlights the lack of respect for the judicial process that Plaintiff and his counsel have exhibited time and time again. Sanctions are necessary here, not only as a punishment, but also as a deterrent, where such abusive conduct seems to be Levoritz s modus operandi. Indeed, as noted above, this Court recently held that Levoritz s co-counsel engaged in frivolous conduct for filing duplicative lawsuits to harass their client s wife just as Levoritz has done here. And, as recounted more fully infra, Levoritz has engaged in this same pattern of duplicative and baseless litigation in numerous other cases, all stemming from underlying matrimonial actions. (See Ex. E.) Indeed, in one instance he actually personally sued his client s ex-wife, and in another he commenced a lawsuit against his opposing counsel. (See Exs. F, I.) Unless Kern and Levoritz are held accountable for this conduct, they will continue unfettered to abuse the judicial process. Enough is enough. Plaintiff and his counsel should be sanctioned and ordered to reimburse Ms. Karg her costs and reasonable attorney s fees in being forced to defend against yet another one of their baseless lawsuits. LEGAL ARGUMENT I. PLAINTIFF S COUNSEL SHOULD BE SANCTIONED FOR FAILING TO APPEAR AT THE ORAL ARGUMENT WITHOUT CAUSE Plaintiff s counsel exhibited an utter disrespect for the Court and the judicial process by failing to appear for the motion-to-dismiss hearing without any notice or explanation let alone 2 5 of 13

6 the requisite good cause. Of course, as the Court held, it was clear from the papers that Plaintiff s action should be dismissed (Ex. A), but by failing to appear for a Court hearing without any notice Plaintiff s counsel caused the Court and the Defendant to waste considerable time in preparing for and attending an oral argument that never was. Levoritz should be sanctioned for this inexcusable conduct. The Court in its discretion should impose sanctions, including costs and reasonable attorney s fees, because Levoritz, without good cause, fail[ed] to appear at a time and place scheduled for an action or proceeding to be heard before a designated court. 22 NYCRR (a). The motion to dismiss was fully briefed on June 30, 2016, yet at no point during the three-month intervening period before the September 21 oral argument did Levoritz seek an adjournment or otherwise advise the Court or the Defendant that he would be a no-show: Levoritz did not notify the Court or opposing counsel in advance of the oral argument that he would not appear, see 22 NYCRR (b)(3); Levoritz has offered no explanation before or after the oral argument for his non-appearance, see 22 NYCRR (b)(1); Levoritz did not file an affirmation of actual engagement under Part 125 of the Uniform Rules for the Trial Courts of the Unified Court System, see 22 NYCRR (b)(5); and Substitute counsel did not appear, either to proffer an explanation for Levoritz s absence or to proceed with the case, see 22 NYCRR (b)(5). (Bakale Aff. at 5-8.) Of course Defendant was harmed by Levoritz s inexcusable non-appearance, see 22 NYCRR (b)(8), where defense counsel expended meaningful resources in preparing 3 6 of 13

7 for and attending an oral argument to dismiss a complaint that never should have been filed in the first place. Especially where Levoritz has engaged in similarly outrageous conduct in other cases, sanctions are appropriate here not only as a punishment but also as a deterrent. 3 See, e.g., Asman v. Durst, 98 A.D.3d 1068, 1069, 951 A.D.3d 229 (2d Dep t 2012) (awarding sanctions for failure to appear at conference). II. PLAINTIFF AND HIS ATTORNEY HAVE ABUSED THE JUDICIAL PROCESS Kern and his counsel have abused the judicial process in this case just as Levoritz has done time and time again in other matters by flooding the Courts with harassing litigations largely duplicative of first-filed matrimonial actions. Not only have Kern and his counsel filed three separate non-matrimonial actions against Karg, (see Ex. E at 1-3), but in a little over the past three years, Levoritz has filed no fewer than thirteen such cases in connection with other matrimonial disputes. (See id., Nos ) In one particularly egregious example not unlike here Levoritz filed three civil actions in a three-month period during the pendency of the underlying matrimonial action, in one case naming himself as the plaintiff, and in another case suing his opposing counsel. (See id., Nos. 4-6.) As counsel in those cases observed then, that type of scorched-earth litigation strategy... exceeds the bounds of zealous advocacy. (Ex. G at 2.) This Court should not permit Kern and his counsel to continue such abuses of the judicial system. See Borstein v. Henneberry, 132 A.D.3d 447, 452, 17 N.Y.S.3d 414 (1st Dep t 2015) (imposing sanctions and attorney s fees against ex-husband for commencement of separate action arising from issues previously decided in underlying matrimonial action, noting that the 3 In one similar example, Levoritz filed an action entirely duplicative of a pending matrimonial matter, and then did not even respond to defendant s motion seeking to dismiss the suit on that basis, resulting in a dismissal by default. (See Exs. R-S.) And in other instances, Levoritz has filed these duplicative lawsuits only to voluntarily discontinue them a short time later. (See e.g., Ex. E, Nos. 4-6.) 4 7 of 13

8 commencement of the new action exhibits a broad pattern... of delay, harassment and obfuscation that warrants the imposition of sanctions ) (internal citations omitted); Heilbut v. Heilbut, 18 A.D.3d 1, 3, 792 N.Y.S.2d 419 (1st Dep t 2005) (imposing sanctions against litigant and attorney where the frivolous nature of counsel s conduct in matrimonial matter must be understood in the context of the underlying protracted frivolous litigation, particularly because this vexatious litigant remains undeterred despite the fact that the courts have clearly advised him of the baseless nature of the litigation ). A. Plaintiff and His Counsel Have Filed Harassing Litigations Against Karg In addition to and notwithstanding the pendency of the underlying matrimonial action, Kern has commenced three separate civil actions against Karg relating to that dispute. In one of those actions, the matrimonial court admonished Kern s counsel for filing lawsuits in different courts in different parts of the state, which seek relief related to, and sometimes duplicative of the issues in the matrimonial action. (Ex. B at 23.) Indeed, the court there found factual questions concerning whether the suit was filed in bad faith and intended to harass, and has deferred until trial whether sanctions are appropriate. (Id. at 20, 23.) The matrimonial court also pointedly observed that the right to free access to the courts may be forfeited where, as here, that party abuses the judicial process by engaging in meritless litigation motivated by spite. (Ex. C at 17.) Kern and his counsel defiantly ignored these warnings when they filed this suit. Not once, not twice, but on multiple occasions, the matrimonial court here has admonished Kern s counsel for his inappropriate tone, and for making false accusations against the court, and because his papers are still replete with insulting and baseless comments and/or accusations against the court. (See Ex. D at 5-6.) The matrimonial court similarly 5 8 of 13

9 cautioned Kern s counsel that the making of any unsupported accusations against [Karg s] counsel or any threats to file baseless claims against her may result in referral to the First Department Disciplinary Committee. (See Ex. B at 20.) And the court admonished his inappropriate or questionable conduct for making inaccurate factual statements for which he has no basis in knowledge. (See Ex. D at 8.) B. Plaintiff s Counsel Has a History of Filing Duplicative Actions for Improper Purposes Just as he has done here, Levoritz has abused the judicial process by filing duplicative actions intended to harass his adversary in underlying matrimonial disputes. As observed by his opposing counsel in one such case, where Levoritz himself was the plaintiff: Plaintiff s baseless lawsuit the third civil action Levoritz and [his client] ha[ve] commenced against Defendant in a three month period is nothing more than an attempt to strong-arm Defendant to capitulate to his client s demands in the pending New York County Matrimonial Action. 4 (Ex. G at 2.) Several courts, including the matrimonial court here, and this Court in an unrelated action, have held that these duplicative filings are abusive. Just earlier this year this Court held that the conduct of Levoritz s co-counsel was sanctionable based on the filing of a frivolous motion, knowingly submitting apparently perjured statements, and filing claims without legal merit in an attempt[] to delay or prolong the [parallel civil action] and the Matrimonial Action to harass [the] Wife. Lvovsky, 2016 N.Y. Misc. LEXIS 428, at *8-9. This Court then transferred that action to the matrimonial court, which, like the matrimonial court here, had previously admonished Levoritz for such egregious abuses of the judicial process: 4 Perhaps recognizing the improper nature of that lawsuit, Levoritz never filed any opposition to the motion to dismiss, and then agreed to voluntarily discontinue the action with prejudice, just as he had done there with the first two such suits. (Ex. E at Nos. 4-6; Ex. F at 10.) 6 9 of 13

10 [the Husband, represented by Levoritz] knows that I transferred matters from other counties here on the matrimonial [action], that I ve had discussions, I have written decisions with respect to this forum shopping issue. So, this is clear forum shopping, going to another court that is not familiar with the history and giving a recitation regarding the issues that were discussed in the Court. I am appalled. This is abuse. This is abusive. Id. at *2 (citing Index No /15, Doc. No. 31, at 94) (emphasis added). 5 Rendering Levoritz s conduct even more egregious, many of the claims that he has asserted in these duplicative lawsuits are facially meritless. Indeed, in one such case, Levoritz asserted a cause of action for larceny and larceny by trick, (Ex. M), criminal charges that are not cognizable civil claims. See Seldon v. Crow, Index No /12, 2014 N.Y. Misc. LEXIS 194, at *8 (Sup. Ct. N.Y. Co. Jan. 22, 2014) (dismissing claim for grand larceny because such an offense is criminal in nature, and may not be pursued in this court ); see also Montalvo v. J.P. Morgan Chase and Co., Index No. 4221/09, 2009 WL at *6 (Sup. Ct. Kings Co., Dec. 18, 2009) ( criminal offenses such as larceny, which are specifically defined in the Penal Law, may not be pleaded as separate causes of action in a civil action ) (citing Crandall v. Bernard, Overton & Russell, 133 A.D.2d 878, 879, 520 N.Y.S.2d 237 (3d Dep t 1987)). In another such case directly arising out of a family-court matter, he styled a single cause of action in a 202-paragraph, 10-count complaint as Fraud, Conversion, Grand Larceny, Breach of Fiduciary Duty. (See Ex. M.) And in yet another one of these lawsuits, Levortiz apparently tried to predicate a fraud claim on a husband s mistaken belief that his desire to spend the rest of his life with Defendant was mutual. (Ex. N at 139.) 5 In another example, Justice Shirley Kornreich sua sponte transferred one such matter to the matrimonial court: Let me ask you this and this should be in the matrimonial court, I don t know why it is here and I will send this case to the matrimonial court because it is a matrimonial. That is what is being dealt with here. (Ex. K at 5:5-9.) 7 10 of 13

11 More fundamentally, time and time again, Levoritz has filed these duplicative civil lawsuits even though there is no good-faith basis under New York law to seek to collaterally attack a matrimonial order through a second plenary action, as this Court held here in dismissing this complaint: New York does not permit a party to collaterally attack a judgment through a fraud claim predicated on misstatements made in the earlier proceeding. Plaintiff cannot commence a second plenary action to attack a judgment. (Ex. A at 1.) Remarkably, though, Levoritz did not even address this dispositive argument in his opposition to the dismissal motion, let alone seek to advance a good-faith basis for departing from this precedent. Of course the law prohibiting collateral attacks on judgments through plenary actions is well settled, but Levoritz actually knew this precedent prior to this frivolous suit. Just last year, a United States District Judge for the Southern District of New York dismissed one of his other similar actions filed (removed from New York Supreme Court) for these very reasons: New York law does not permit a plaintiff to bring a separate claim for damages based on alleged intrinsic fraud in procuring a prior foreign judgment. (Ex. P at 1.) And most recently, just three days before this Court s order of dismissal, Justice Geoffrey D. Wright rejected Levoritz s attempts to relitigate claims that were raised and argued at the Family Court hearing. (Ex. Q at 5.) Plaintiff could have, but did not seek any relief from that decision and this Court will not entertain the Plaintiff s four causes of action in the instant case.... Indeed, even if the Court were to accept the facts as true, the facts fail to fit into any cognizable legal theory. Instead, Plaintiff makes baseless allegations. Measured against this history of judicial abuses, including the filing of procedurally improper, facially deficient, and legally impermissible claims, Levoritz s conduct here is particularly outrageous. Sanctions are necessary here to deter such abusive litigation. See Levy v. Carol Mgmt. Corp., 260 A.D.2d 27, 698 N.Y.S.2d 226 (1st Dep t 1999) (upholding imposition 8 11 of 13

12 of sanctions and noting sanctions are especially warranted where the plaintiff remains undeterred despite the prior imposition of sanctions by the Supreme Court or where the court otherwise clearly advises a vexatious litigant of the baseless nature of the litigation ); see also Timoney v. Newmark & Co. Real Estate, 299 A.D.2d 201, 202, 750 N.Y.S.2d 271, 272 (1st Dep t 2002) ( The proper use of sanctions is a desirable and appropriate way to discourage abusive litigation tactics. ). III. PLAINTIFF S COLLATERAL ATTACK ON THE MATRIMONIAL PROCEEDINGS HAS NO GOOD-FAITH BASIS IN LAW OR FACT This Court held in dismissing this complaint that there is no legal basis to ground a fraud claim on litigation action and New York does not permit a party to collaterally attack a judgment through a fraud claim predicated on misstatements made in the earlier proceeding. (Ex. A at 1.) Levoritz should have been particularly familiar with this settled precedent prior to filing this lawsuit where other New York federal and state courts have cited to him this very prohibition in rejecting his numerous other attempts to use this court to collaterally attack family-court proceedings. Against this backdrop, it is that much more remarkable that in opposition to the dismissal motion here Levoritz failed to even address these fatal defects. See 22 NYCRR (c)(1)-(2) (providing sanctions for advancing claims that are completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law ). These fraud claims, which were grounded in bare allegations of third-party reliance, have been rendered frivolous for the separate and independent reason that several months prior to the scheduled oral argument on Karg s dismissal motion, the Court of Appeals definitively decline[d] to extend the reliance element of fraud to include a claim based on the reliance of a third party, rather than the plaintiff. Pasternack, 27 N.Y.3d at 829. Had Levoritz bothered to 9 12 of 13

13 attend the oral argument, perhaps he could have tried to explain to the Court why he had not withdrawn these claims in light of this on-point precedential ruling. 6 See Maroulis v. 64 St. Third Ave. Assocs., 77 N.Y.2d 831,831 (1991) (claims are frivolous for the purposes of l(a) and (c) where no reasonable argument can be made to support them). CONCLUSION Plaintiff and Levoritz filed this third duplicative lawsuit even after having been rebuked for such harassing filings. This pattern of filing baseless claims will not cease until it comes with consequences. Sanctions are necessary here not only to punish, but to deter Levoritz's behavior. Defendant's motion for sanctions should be granted so that Kern and his counsel, once and for all, will refrain from abusing the judicial process. Dated: October 14, Grossma Lindsay E. Hoga sq. Amanda M.F. Bakale, Esq. 745 Fifth Avenue, 5th Floor New York, New York Telephone: (646) jgrossman@grossmanllp.com lhogan@grossmanllp.com abakale@grossmanllp.com Attorneys for Defendant Nathalie Karg 6 The invasion-of-privacy claim was equally frivolous where it purportedly was based on an independent news article crediting Karg as the "co-founder" of Kern's art gallery, but Kern did not allege that Karg had anything to do with the statements of 13