Brocklebank v. City of Lockport

198 A.D.2d 906, 604 N.Y.S.2d 454

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1993
• Status: Published

Opinion

—Order unanimously reversed on the law without costs and cross motion denied. Memorandum: Supreme Court erred in granting the cross motion of defendant Oldenberg for imposition, pursuant to 22 NYCRR 130-1.1, of costs and attorney’s fees in the amount of $1,000 against plaintiffs’ attorney for frivolous conduct. Plaintiffs’ attorney does not dispute that he failed to give advance notice to defendant Oldenberg’s attorney, whose office is in Ithaca, that plaintiffs had adjourned a motion scheduled for argument in Niagara Falls, and that defendant Oldenberg was put to needless expense by that failure. Nevertheless, defendant Oldenberg failed to show that the request for an adjournment constitutes frivolous conduct within the meaning of 22 NYCRR 130-1.1 (c) (1), i.e., conduct that "is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.” He also failed to show that the failure to notify him of the adjournment constitutes frivolous conduct within the meaning of 22 NYCRR 130-1.1 (c) (2), i.e., conduct "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another.” Moreover, the court erred in failing to issue a written decision, as required by 22 NYCRR 130-1.2 (see, Jaswolk Realty Corp. v Jasper, 182 AD2d 739, 740). (Appeal from Order of Supreme Court, Niagara County, Rath, Jr., J. — Sanctions.) Present— Pine, J. P., Balio, Doerr, Boomer and Boehm, JJ.