Banat v. Passalaqua

142 A.D.2d 706, 531 N.Y.S.2d 106, 1988 N.Y. App. Div. LEXIS 7995

Opinion

— In an action to recover damages for alleged fraud and perjury in a prior civil proceeding, the defendant appeals from so much of an order of the Supreme Court, Kings County (Lodato, J.), dated August 24, 1987, as denied that branch of her motion which sought a $10,000 award for costs and reasonable attorney fees, pursuant to CPLR 8303 (a).

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The court did not err in denying the defendant’s application for an award in the sum of $10,000 for costs and reasonable attorney fees, pursuant to CPLR 8303-a. Neither CPLR 8303-a as initially enacted (see, L 1985, ch 294, § 10) nor as subsequently amended (see, L 1986, ch 220, § 35; ch 485, § 11) authorizes a $10,000 award to the defendant for costs and reasonable attorney fees predicated upon the plaintiffs commencement of a frivolous action to recover damages for alleged fraud and perjury in a prior civil proceeding. This statutory provision was enacted and thereafter amended for the purpose of deterring the commencement of frivolous claims and counterclaims that contributed to the escalating cost of premiums for medical, dental, and podiatric malpractice insurance (see, L 1985, ch 294, § 1; L 1986, ch 485) and liability insurance (see, L 1986, ch 220, § 1) by permitting the court to award to the successful party costs and reasonable attorney fees in a sum not to exceed $10,000. The plaintiffs claim does not adversely affect such premiums and clearly does not fall within the designated class of action for which such an award is permitted (see, L 1986, ch 220, § 35; ch 485, § 11). Rubin, J. P., Kooper, Sullivan and Balletta, JJ., concur.