Two Judges Decline to Sanction Sorkin Over His Advocacy
Moreover, he sued Sorkin in Nassau County Supreme Court under Judiciary Law §487, arguing that Sorkin "engaged in deceit with intent to deceive the Court," when he explained how he obtained the draft (NYLJ, July 10, 2013). Sorkin countered he was not deceitful as a matter of law.
During the federal sanction proceedings in Lorber v. Winston, 12-cv-3571, Spatt said courts must apply a standard of "objective unreasonableness" and pointed to case law urging judicial "restraint" when considering sanction requests.
Here, Spatt said Winston was inviting him to consider the merits of the federal suit, even though he dismissed it on procedural grounds, and Lorber had since filed suit in Manhattan Supreme Court on the state claims that Spatt would not consider. Spatt refused to engage in the "heavily factual inquiry."
When making the case for sanctions, Winston pointed to financial documents that he said Lorber either signed or sent and received from her fax machine and email. For example, he noted a 2006 fax Lorber sent to a bank permitting a $529,000 payment on a credit line, which "destroy[ed]" a "pervasive allegation" that Winston tried to ensure she did not communicate with the bank about the credit line.
But Spatt said "it cannot be said that Lorber's and Sorkin's decision to bring this action was wholly unreasonable. As Lorber and Sorkin argue, it is possible, for example, that the financial documents ... were forgeries" that could support Lorber's claims.
Judiciary Law Claims
In the Nassau County Supreme Court case, Murphy called Winston's disqualification bid connected to the draft document "superfluous" because Winston already demonstrated Sorkin had to be removed on the prior representation grounds.
"The costs incurred by counsel in prosecuting the second motion to disqualify Sorkin were self-created," Murphy said. "The motion was not essential and, in fact, appears to have been made for the primary purpose of invoking the punitive treble damage claim of Judiciary Law §487."
The judge added Sorkin was "well within his rights" to fight the allegation that he used a privileged work product document. He said there was "no evidence" Sorkin "intentionally sought to deceive the Court or his adversary."
Murphy said the document "passed through a number of hands before it reached [Sorkin], and he was warranted, and seemingly duty-bound to [Lorber], to avoid the impact of her being precluded from representation of her choice in the action."
Furthermore, the judge said the "underlying thrust" of Sorkin's claim—that Eve received the document and gave it to Felder, who forwarded it to Sorkin—"appears to be true."
Robert Lynn Jr. and Kenneth Gartner of Lynn, Gartner, Dunne & Covello in Mineola represented Sorkin.