Sanctions!

22 NYCRR 130-1.1 Costs; sanctions

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Caplan v Tofel, 2009 NY Slip Op 06658 (App. Div., 2nd, 2009)

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 130-1.1 for frivolous
conduct. 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). However, the Supreme Court providently exercised its
discretion in denying that branch of the defendant's motion which was
to impose a sanction upon the plaintiff's counsel, based upon its
finding that counsel was not fully aware of the history of prior
litigation between the parties.

The continuation of the same patently meritless arguments on
appeal would appear to constitute frivolous conduct, and therefore we
direct counsel for the parties to show cause why additional sanctions
should or should not be imposed (see Good Old Days Tavern, Inc. v Zwirn, 271 AD2d 270; 22 NYCRR 130-1.1[c]).

Matter of Nazario v Ciafone, 2009 NY Slip Op 06691 (App. Div., 2nd, 2009)

In support of that branch of the petition which was to compel the
appellant to turn over the petitioner's file to her new attorney, the
petitioner presented proof that on January 25, 2007, the appellant
received her letter discharging him as her attorney and requesting him
to turn over her file. In opposition, the appellant submitted his
affirmation in support of his claims that the petitioner had given him
more time to work on her file and that he had a common-law retaining
lien on the file to secure his right to reimbursement of disbursements (see Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 457-459; Lelekakis v Kamamis, 8 AD3d 630; Lansky v Easow, 304 AD2d 533; Landy v Jacobs, 284
AD2d 432). The appellant is a party to this proceeding; therefore, his
submission of an affirmation rather than an affidavit was insufficient
to oppose the petition because it was not in admissible form (see CPLR 2106
; Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 801 n *; Pisacreta v Minniti, 265 AD2d 540; Lauer v Rapp, 190
AD2d 778). Furthermore, he failed to submit any proof demonstrating
that he had earned any fee or was entitled to recover any disbursements
that had been paid prior to the effective date of the discharge (cf. Lelekakis v Kamamis, 8 AD3d 630; Lansky v Easow, 304 AD2d 533; Security Credit Sys. v Perfetto, 242 AD2d 871; Roskind v Brown, 29
AD2d 549, 550). Accordingly, the court properly granted that branch of
the petition which was to compel the appellant to turn over the
petitioner's file to her new attorney without holding an expedited
hearing, since the appellant's papers in opposition failed to raise an
issue of fact regarding a retaining lien for disbursements.

Furthermore, the court providently exercised its discretion in
granting that branch of the petition which was pursuant to 22 NYCRR
130-1.1 for an award of costs and the imposition of sanctions [*2]against
the appellant. Contrary to the appellant's contention, since the
petitioner expressly requested the subject relief in her motion papers,
and the appellant was afforded an opportunity to be heard and to oppose
the motion, a hearing was not required (see 22 NYCRR 130-1.1[d]
; Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411, 413 n; Matter of Balsamo, 55 AD3d 905, 906; Wesche v Wesche, 51 AD3d 909, 910; RCN Constr. Corp. v Fleet Bank, N.A., 34 AD3d 776).

The bold is mine.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s