What About Fishbein v. Empire State Building?

The Rhode Island Supreme Court affirmed an order dismissing the complaint of a suspended attorney and imposing sanctions

This case stems from a dispute about legal fees between plaintiff, who is currently a suspended Rhode Island attorney, and the defendant, Cynthia Hanssen. In the course of that dispute, on January 9, 2012, plaintiff first noticed the deposition of Ms. Hanssen’s counsel. On March 21, 2012, a protective order was granted preventing that deposition. In spite of the existence of that protective order, over two years later, on November 6, 2014, Mr. Fishbein moved to disqualify Ms. Hanssen’s counsel so that he could call him as a witness at trial. The hearing justice found that the motion to disqualify had no basis “whatsoever” and that it was filed to “harass or cause unnecessary delay and clearly increase the cost of litigation.” As a result, the hearing justice imposed sanctions in the amount of $5,000 against Mr. Fishbein. Mr. Fishbein failed to pay those sanctions, despite having been found to have the ability to pay and having been given several months to do so. Accordingly, the hearing justice dismissed Mr. Fishbein’s complaint pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure. Ms. Hanssen’s counterclaim in this case remains pending in Superior Court.

With respect to the first issue raised on appeal (viz., whether or not Mr. Fishbein’s conduct was sanctionable), it is our view that Mr. Fishbein has waived that issue on appeal. While he includes a lengthy fact section in his filing before this Court, he does not set forth any discussion of the issue in the analysis section of that filing, nor does he cite to any legal authority to support his contentions. As such, the first argument is waived. See Terzian v. Lombardi, 180 A.3d 555, 558 (R.I. 2018) (“It has been our consistent policy that simply stating an issue for appellate review, without a meaningful discussion thereof or legal briefing of the issues * * * constitutes a waiver of that issue.”) (brackets and internal quotation marks omitted).

Turning to Mr. Fishbein’s contention with respect to the amount of the sanctions leveled against him, we note that he avers that the hearing justice did not find that he had an ability to pay the sanctions by the specified date and that he was entitled to an evidentiary hearing on his ability to pay. However, the hearing justice specifically found in the order and judgment on appeal that Mr. Fishbein was able to pay as ordered. What is more, even assuming arguendo that an evidentiary hearing on the ability to pay was required (an issue we deliberately choose not to pass upon), it is clear from this Court’s thorough perusal of the record that such a hearing was in essence held on both May 18 and June 18, 2015.

Mr. Fishbein further contends that there was no evidence that the time records kept by Ms. Hanssen’s counsel were contemporaneous or that Ms. Hanssen “actually incurred” the charges. But Mr. Fishbein failed to file a single affidavit or any other evidence contesting the amount of fees in Superior Court, even when specifically invited to do so by the hearing justice at a February 4, 2015 hearing. As such, the hearing justice did not err in awarding $5,000 in sanctions based on opposing counsel’s affidavit as to the fees incurred and the affidavit of attorney Paul V. Gallogly attesting to the fact that the fees were fair and reasonable. 

This one’s for Paul Burgoyne if he is still reading in retirement from the classic movie  The Fortune Cookie in the opening negotiations between counsel

William H. “Whiplash Willie” Gingrich: That so? What about Fishbein v. the Empire State Building?

O’Brien: What about it?

William H. “Whiplash Willie” Gingrich: You’ll find it in Volume 16, New York Supplement Two, Page 45, 1900 and 39. A window washer, 61st floor. The safety belt broke and –[Willie makes the motion and sound of someone falling.]

Thompson: As a window washer, Mr. Fishbein was taking a normal occupational risk.

William H. “Whiplash Willie” Gingrich: The window washer’s name was Jones. Mr. Fishbein was a pedestrian walking innocently down 34th Street, and the next thing he knew, he was splattered all over the sidewalk. The widow sued, was awarded $85,000. Case appealed, judgement upheld. Volume 259, Appellate Division, page 56. Also Volume 24, New York Supplement Two, page 168, 1900 and 40.

O’Brien: Maybe in New York, they throw money around like that.

William H. “Whiplash Willie” Gingrich: All right, what about Mrs. Cunningham v. Baltimore and Ohio Railroad? US District Court, Eastern District of Ohio, Number eighty-nine twenty-seven. Mrs. Cunningham, en route to Cincinnati to visit dying uncle, gets trapped in the toilet on account of a faulty lock. The car is hitched to another train. Mrs. Cunningham winds up in San Bernardino, California. By this time, the uncle is dead, and she’s cut of the will. So, she sues the railroad for damages. Does this ring a bell?

Thompson: Never heard of it.

William H. “Whiplash Willie” Gingrich: You mean, none of you has? Because you gentlemen represented the railroad.

O’Brien: We did?

William H. “Whiplash Willie” Gingrich: And lost the case.

Indeed. (Mike Frisch)