Costantini v. Costantini

44 A.D.3d 509, 843 N.Y.S.2d 328

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Laura E. Drager, J.), entered on or about July 6, 2006, which denied defendant’s motion for sanctions and granted plaintiff’s cross motion for sanctions and attorney’s fees, unanimously modified, on the facts and in the exercise of discretion, the attorney’s fee award reduced from $10,000 to $1,875, and otherwise affirmed, without costs.

The court’s denial of sanctions and its finding that neither plaintiff nor her lawyer had engaged in frivolous conduct constituted a proper exercise of discretion (see 22 NYCRR 130-1.1 [a], [c]). The grant of such relief to plaintiff was not an improvident exercise of discretion, as defendant had previously brought an order to show cause for sanctions and attorney’s fees, which the court had refused to sign (see Benefield v New York City Hous. Auth., 260 AD2d 167 [1999]). The court afforded defendant a reasonable opportunity to be heard (see 22 NYCRR 130-1.1 [d]). The transcript of the hearing, which was incorporated by reference into the court’s written decision, set forth the conduct on which the award was based and the reasons why the court found the conduct frivolous (see 22 NYCRR 130-1.2). However, the court did not explain why $10,000 was an appropriate award for attorney’s fees. Plaintiffs counsel’s rate was $375 per hour; he spent three hours preparing motion papers and the hearing lasted two hours. We reduce the award accordingly. Concur— Saxe, J.P., Marlow, Williams, Sweeny and Malone, JJ.