FILED: NEW YORK COUNTY CLERK 11/06/ :34 PM INDEX NO /2014 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 11/06/2015

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1 FILED: NEW YORK COUNTY CLERK 11/06/ :34 PM INDEX NO /2014 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 11/06/2015 SUPREME COURT OF THE STATE NEW YORK: COUNTY OF NEW YORK X MARK TUNNE, Plaintiff, NOTICE OF MOTION FOR SANCTIONS AGAINST DEFENDANTS GERALD P. HALPERN, ESQ.; ALAN ZEISS; JOSHUA CLINTON PRICE, ESQ.; NEW YORK CITY MARSHALL THOMAS J. BIA; KENNETH LITWAK, ESQ. -against- Index No /2014 GERALD P. HALPERN, ESQ., - EXECUTOR FOR THE ESTATE OF FRED ZEISS; ALAN ZEISS- CO-EXECUTOR FOR THE ESTATE OF FRED ZEISS; JOSHUA CLINTON PRICE, ESQ. - OWNER OF THE PRICE LAW FIRM, LLC; ROD FELDMAN-OWNER AND PRESIDENT OF TRI STAR EQUITIES, INC.; NEW YORK CITY MARSHALL THOMAS J. BIA; MIKE SOLE AND CHRISTINE OWNERS OF TRIPLE A MOVING, INC. and their SUB CONTRACTOR(S) (d/b/a) VAN LINE TRUCKING including any JOHN DOE(S) AND JANE DOE(S) X PLEASE TAKE NOTICE, that upon the annexed Affidavit and Exhibit(s) of the Plaintiff Pro Se, Mark Tunne, and upon all of the pleadings and proceedings heretofore had herein, the Plaintiff will move this Court before the HON. JENNIFER SCHECTER at the New York State Supreme Court House located 60 Centre Street, Room 130, New York, NY on the 16 th day of November, 2015 at 9:30 o clock in the forenoon of that day or as soon thereafter as counsel may be heard, for an Order granting Plaintiff the following relief: (a) ) Granting Plaintiff s Motion for Sanctions against Defendants Gerald P. Halpern, Esq., Joshua Clinton Price, Esq., City Marshall Thomas J. Bia, and his attorney, Kenneth Litwak, Esq. due to evidence obtained on October 31, 2015 proving the existence of deception perpetrated by Mr. Litwak that was intended to delay and prolong the prosecution of this civil proceeding when he and his client, Marshall Bia, misrepresented to the Court, and Plaintiff, the name and true identity of the landlords s Agent who received possession of Plaintiff s properties that are now believed to be discarded as Trash or have been the victim of conversion at the evil hands of the landlords s Agent, Rod Feldman.

2 (b) Plaintiff is requesting sanctions against Halpern, Marshall Bia, Litwak, and Price for their intentional, deliberate, fraud by misrepresentations, deceptions, and concealment when they knowingly, with negligence, withheld of information from Plaintiff the true name and identity of the Agent, Rod Feldman, who did not store Plaintiff s properties as required by law. (c) Each defendant with the exception of Alan Zeiss are officers of the court. (d) As a result, Plaintiff has suffered irreparable damages. Plaintiff s seeks all legal and equitable damages, including emotional damages as the court deems just and fair.

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4 SUPREME COURT OF THE STATE NEW YORK: COUNTY OF NEW YORK X MARK TUNNE, Plaintiff, PLAINTIFF S AFFIDAVIT IN SUPPORT FOR SANCTIONS AGAINST DEFENDANTS GERALD P. HALPERN, ESQ.; ALAN ZEISS; JOSHUA CLINTON PRICE, ESQ.; NEW YORK CITY MARSHALL THOMAS J. BIA; KENNETH LITWAK, ESQ. -against- Index No /2014 GERALD P. HALPERN, ESQ., - EXECUTOR FOR THE ESTATE OF FRED ZEISS; ALAN ZEISS- CO-EXECUTOR FOR THE ESTATE OF FRED ZEISS; JOSHUA CLINTON PRICE, ESQ. - OWNER OF THE PRICE LAW FIRM, LLC; ROD FELDMAN-OWNER AND PRESIDENT OF TRI STAR EQUITIES, INC.; NEW YORK CITY MARSHALL THOMAS J. BIA; MIKE SOLE AND CHRISTINE OWNERS OF TRIPLE A MOVING, INC. and their SUB CONTRACTOR(S) (d/b/a) VAN LINE TRUCKING including any JOHN DOE(S) AND JANE DOE(S) X MARK TUNNE, Plaintiff Pro Se, affirms under the penalties of perjury as follows: 1. I am the Plaintiff pro se of record and as such I am fully familiar with all of the facts and circumstances surrounding the instant action. 2. Upon recent discovery, on October 31, 2015, one day after filing his Notice of Motion to Compel Enforcement, Plaintiff discovered through a colleague, the true name and identity of the landlords s Agent who received possession of Plaintiff s on May 9, 2013.

5 RECENT EVENTS 3. Upon completing all motions that were to be submitted on or before October 30, 2015, as per the court s September 9 th Order, Plaintiff sought the assistance of a colleague who carefully reviewed the signature written on Marshall Bia s Inventory list. See attached heretofore Plaintiff s Exhibit A Marshall s Inventory list. 4. Since receiving the Marshall s list in May 2013, Plaintiff could not decipher the name of the landlords s Agent written on the document due to poor penmenship. 5. Upon the commencement of litigation, and at every Preliminary Conference, Compliance Conference, and the few in-person, or telephone discussions, Plaintiff s adversary, Kenneth Litwak has emphatically [re] stated the name of the landlords s Agent who received possession of Plaintiff s properties was none other than a man name Robert. See attached heretofore Plaintiff s Exhibit B a copy of Marshall Bia s 1 st Interrogatory responses acknowledging the name of the landlords s Agent who received (allegedly) Plaintiff s properties. His response Robert. See No. 16. The name Robert is referenced. Bear in mind no last name is given. 6. However, upon scrutinizing examination of the of the Agent s signature, Plaintiff and his colleague were finally able to decipher the two (2) names of the Agent s signature. Upon close, careful review, [under a magnifying glass] the full name of the landlords s Agent is none other than Rod Feldman. 7. Since May 2013, until December 2014, has never been told the name of the Agent who received possession of Plaintiff s properties from attorney, Joshua Price; nor from his Associate, Heather Ticotin, Esq. Both attorneys who are counsels for landlordss Gerald Halpern, Esq., and Alan Zeiss, knew, or should have known; and should have revealed, the name of the

6 landlords s Agent in question. 8. Plaintiff repeatedly requested from Mr. Price by telephone, and at times demand, in-person with Joshua Price, from May 2013 thru December 2014, the name of the landlords s Agent who received possession of Plaintiff s properties. Mr. Price always stated, and feigned, having no knowledge of the Agent who received possession of Plaintiff s properties. 9. During the same time period, but less often, Plaintiff contacted Mr. Feldman directly over the telephone requesting to know the name of the landlords s Agent who received possession of Plaintiff s properties. Mr. Feldman always stated, I don t know. [the name of the landlords s Agent who received your property] 10. During Plaintiff s deposition with Mr. Litwak, Mr. Litwak restated a few times the name of the landlords s agent who received Plaintiff s properties was a man name Robert. At times, when Plaintiff approached this subject with Mr. Litwak in court at conferences, or in the court hallway, he d become verbally combative with Plaintiff always stating the name of the Agent who received possession of Plaintiff s properties was a man name Robert. 11. When pressed by Plaintiff for an explanation why Marshall Bia never documented Robert s last name in compliance with his duties under the laws set forth by the Department of Investigation s Marshall s Handbook, section 6.4 and 6.5, Mr. Litwak would state words to this effect, He doesn t have to list the last name! [of the agent.] 12. As a result, Plaintiff was, and has been, and continues to this very day, damaged by the concealment, misrepresentations, and deceptions condoned, and/or perpetrated by Gerald Halpern, Esq., Plaintiff s former landlords who is by law responsible for the actions of his Agent, Rod Feldman. Mr. Feldman simply refused to give Plaintiff his name and identity as the person who received possession of Plaintiff s properties when contacted by telephone.

7 13. Mr. Halpern and Alan Zeiss are also responsible for the actions of their attorney, and co-defendant, Joshua Price, who refused to give Plaintiff the full name and identity of the Agent who received possession of Plaintiff s properties. This unlawful act of fraud was orchestrated by Mr. Price, on behalf of both landlordss as a form of legal protection fom May 2013 [the month of Plaintiff s eviction], all the way to December 2014, when Plaintiff temporarily ceased seeking the name of the Agent until the lawsuit reached the discovery stage. 14. Mr. Halpern and Mr. Zeiss are also responsible for the refusal, deliberate actions of their hired Agent, Marshall Bia, who refused to give Plaintiff his true, full name and identity to Plaintiff, as the Agent hired by the landlords to inventory and sign over possession of Plaintiff s properties to the landlords s Agent, Rod Feldman. 15. Mr. Litwak is responsible for not giving Plaintiff the true name and identity of the Agent, whom he knew or should have known, who signed his signature on the Marshall s inventory list, his client, Marshall Thomas Bia, as the person who signed over possession of Plaintiff s properties to Rod Feldman. 16. As a result, Plaintiff was, and still is, severely damaged by the discarding or conversion of Plaintiff s properties at the evil hands of Rod Feldman. 17. See line 22 of Marshall Bia s 1 st set of Interrogatory responses, he states Plaintiff s properties were considered Trash. This was his explanation given to Plaintiff from Mr. Bia and Mr. Litwak explaining why Mr. Bia did not do a complete inventory of Plaintiff s properties that were neatly packed in four boxes, and a few trash bags with a note attached asking the Marshall to contact Plaintiff by telephone. See attached heretofore Plaintiff s Exhibit C. Plaintiff s contact note left behind in his apartment. *While New York City Marshalls are not required to contact evicted tenants regarding the whereabouts of their properties, there is a duty on the part of [a] landlord[s] or their Agent[s] to contact or inform the evicted tenant upon request where their properties are located.

8 LEGAL STANDARD 18. Courts have the inherent power to ensure the orderly and efficient administration of justice within the scope of their jurisdiction, including the authority to sanction wrongful conduct. Dziubek v. Schumann, 275 N.J. Super. 428, (App. Div. 1995). 19. Pursuant to 22 NYCRR , sanctions may be imposed against a party or the attorney for a party for frivolous conduct. (See 22 NYCRR [b]). 20. Conduct is frivolous if it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is taken to primarily delay or prolong the resolution of the litigation, or harass or maliciously injure another; or it asserts material factual statements that are false. (see 22 NYCRR [c]; Mascia v Maresco, 39 AD3d 504 (2007); Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 431 (2005). 21. The conduct of members of the bar is governed by the Rules of Professional Conduct. R. 1:14. Attorneys are bound by a duty of candor towards the tribunal, and a duty of fairness to the opposing party and counsel. Rules of Prof l Conduct, R. 3.3, Counsel may not knowingly disobey any rule of court, except when making an open refusal based on an assertion that no valid obligation exists. Id. At R. 3.4(c). Counsel may not participate in the procurement of evidence [or statements] that is false or that is procured through improper inducements. Id. At R. 3.4(b). 23. The circumvention of these rules, whether accomplished personally or through the acts of others, and conduct prejudicial to the administration of justice, constitutes misconduct. Id. At R.8.4(a),(d). Courts are responsible for assuring that the Rules of Professional Conduct are observed during court proceedings. R. 1:18.

9 24. See Yan v. Klein, NY Slip Op AD3d 729 (2006), the court held, Conduct is frivolous under 22 NYCRR if it is completely without merit and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law, or it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another. (see Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 431 (2005); Tyree Bros. Envtl. Servs. v Ferguson Propeller, 247 AD2d 376, 377 (1998). see 22 NYCRR [c] [1]; Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 431 (2005); Kucker v Kaminsky & Rich, 7 AD3d 491, 492 (2004); Tyree Bros. Envtl. Servs. v Ferguson Propeller, 247 AD2d 376, 377 (1998). 25. See Caplan v. Tofel, NY Slip Op (App. Div., 2nd, 2009). The court held The Supreme Court also providently exercised its discretion in granting that branch of the defendants' motion which was to impose a sanction upon the plaintiff pursuant to 22 NYCRR for frivolous conduct. 26. Contrary to the plaintiff's contention, the record supports the Supreme Court's finding that he engaged in frivolous conduct by instituting this action for the primary purpose of delaying enforcement of the defendants' judgment. (See Matter of Minister, Elders & Deacons of Ref. Pro. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411 (1990). 27. In Joan 2000, Ltd. v. Deco Constr. Corp., NY Slip Op (App. Div., 2nd Dept. 2009) the court held, Pursuant to 22 NYCRR , sanctions may be imposed against a party or the attorney for a party for frivolous conduct. (See 22 NYCRR [b]).

10 28. The further held, Conduct is frivolous if it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is taken to primarily delay or prolong the resolution of the litigation, or harass or maliciously injure another; or it asserts material factual statements that are false. (see 22 NYCRR [c]) RELIEF SOUGHT 29. Based on the facts presented in this motion, Plaintiff prays for the following relief: 30. Due to Mr. Halpern, Alan Zeiss, Rod Feldman, Joshua Price, Marshall Bia, and Ken Litwak, especially Mr. Litwak s frivolous acts that were intended to harass, delay, prolong, and legally injure Plaintiff with his most recent fraudulent concealments, misrepresentations, deceptions, and frivolous actions, Plaintiff requests sanctions be imposed upon these Defendants for the total sum of $10,000.00, severally or jointly, or a number approved by this court. 31. Plaintiff further seeks sanctions against Mr. Litwak and Marshall Bia for false statements in Mr. Bia s Interrogatories claiming the only knowledge they had of the Agent who received possession of Plaintiff s properties was a man name Robert. 32. Plaintiff seeks the relief sought filed in his Notice of Motion, including a punitive, negligent, general, nominal, and emotional distress damages, and all other damages for the willful, prolong, delays in not informing Plaintiff who took possession of Plaintiff s properties and deliberate deceptions perpetrated upon Plaintiff and the court. WHEFORE, based on the relevant facts of these most recent events, Plaintiff seeks sanctions against Gerald P. Halpern, Alan Zeiss, Rod Feldman, Joshua Price, Marshall Bia and

11 Kenneth Litwak for intentionally misrepresenting facts filed in this motion. Plaintiff prays for all other relief the court deems just and fair.