Arteaga v. Martinez

79 A.D.3d 951, 912 N.Y.S.2d 902

Opinion

In an action for a divorce and ancillary relief, nonparty Shmuel Agami, the plaintiffs attorney, appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Bivona, J.), dated October 5, 2009, as granted that branch of the defendant’s motion which was to impose a sanction upon him, to the extent of directing him to pay a sanction in the sum of $2,500 pursuant to 22 NYCRR 130-1.1.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellant, attorney for the plaintiff, filed a notice of pendency against property owned solely by the defendant based upon the plaintiffs claim to equitable distribution. The filing of a notice of pendency against the defendant’s property based upon a claim of equitable distribution is completely without merit, since title, possession, use, or enjoyment of the subject property will not necessarily be affected (see Gross v Gross, 114 AD2d 1002, 1003 [1985]; Sehgal v Sehgal, 220 AD2d 201 [1995]; Fakiris v Fakiris, 177 AD2d 540, 543 [1991]). After the action was dismissed for lack of jurisdiction, the appellant unreasonably delayed in canceling the notice of pendency, generating unnecessary motion practice. Under the circumstances, the award of a sanction in the sum of $2,500 pursuant to 22 NYCRR 130-1.1 was a provident exercise of discretion. Dillon, J.P., Santucci, Dickerson and Chambers, JJ., concur.