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Attorney in Defamation Case Sanctioned $14,000 for 'Frivolous' Action
New York Law Journal
November 14, 2008
A Long Island, N.Y., attorney who was sued for defamation by a Garden City law firm has been sanctioned $14,000 for a "frivolous" legal maneuver -- impleading his adversary's attorney as a third-party defendant.
In Galasso, Langione & Botter v. Liotti, 19276/07, Acting Supreme Court Justice Daniel Palmieri of Nassau County ordered Garden City attorney Thomas F. Liotti to pay Hempstead lawyer Frederick K. Brewington $14,000 in legal fees and $98.69 for expenses.
The suit arose out of Liotti's representation of Anthony Galasso, a former bookkeeper of Galasso, Langione, Catterson & LoFrumento, where Anthony's brother Peter is a partner. Anthony Galasso pleaded guilty to embezzling upwards of $2 million from the firm and was sentenced to 2 1/2 to 7 1/2 years in prison.
In an interview Thursday, Liotti vowed to appeal the sanction. He maintained that the Galasso firm and its attorney, Brewington, only sued him to mitigate any civil liability from Anthony Galasso's theft.
In addition to impleading Brewington, Liotti moved to disqualify Mark E. Goidell from representing the firm in a civil suit against Anthony Galasso. Goidell, a Garden City solo practitioner, is a former partner in the Galasso firm.
"I still maintain that their actions were totally frivolous and unwarranted," Liotti said.
In October 2007, while the criminal case was pending, Liotti was quoted in Newsday as saying that "Anthony didn't do anything that he was not instructed to do by his superiors. Whatever he did, he did with their full knowledge and consent. Dipping into company accounts was a common practice among attorneys there. Is the Galasso firm going to say they never went to a concert or a sporting event using this money? I think that's something that should be addressed."
Partners at the law firm, including Peter J. Galasso, sued Liotti, claiming he had defamed them. In May, Justice Palmieri granted a motion by the firm to strike several affirmative defenses advanced by Liotti, including an argument that the statements made were true.
Palmieri also granted Brewington's motion seeking to be dropped from the lawsuit as well as sanctions against Liotti.
At a hearing last month, Brewington testified that his hourly rate is $400, and described his legal training and office record-keeping policy, according to the decision.
Brewington also offered as evidence an unrelated decision by Eastern District Judge Frederic Block, which awarded him legal fees at the $400 per hour rate.
Liotti testified that he too charges $400 an hour, and outlined his legal background, leading Palmieri to write that "[b]oth parties have similar practices, similar sized law firms in the same county and have in fact appeared together in some cases."
Liotti said that he and Brewington had been adversaries in the past, but that Brewington "has yet to best me."
Brewington claimed more than $36,000 in legal fees and disbursements, including fees for "time spent in opposing a motion for a stay and a temporary restraining order made in the Appellate Division," which sought a stay pending an appeal of Palmieri's prior decision.
Palmieri concluded that "there is ample corroborating evidence to support Brewington's hourly billing rate request" but said that he could only recover costs for litigating the third-party action.
However, the judge wrote that Brewington "should be compensated for the time associated with preparation for and attendance at the calls of the calendar and the hearing itself," citing Posner v. S. Paul Posner Irrevocable Family Trust, 12 AD3d 177.
"The Court cannot disregard the fees incurred in proving the reasonableness of the requested fee at the hearing," the judge wrote, adding that doing so "penalizes the recipient for following the directives of a court," and could chill a party's willingness to "seek enforcement of a right."
In an interview, Goidell, who worked with Brewington on the sanctions matter, called the penalty "appropriate under the circumstances, well-reasoned and just."
The entire award will go to Brewington. Goidell did not receive a share.
Goidell called any implication that the defamation suit was brought in order to deflect criticism from the Galasso firm "patently untrue."
"The firm has brought appropriate action against those responsible for the theft [who are] liable to the firm and its clients and against Liotti for his defamatory comments," Goidell said.
Goidell continues to represent the firm in its civil action.
Brewington could not be reached for comment.
