Felber v. Felber

208 A.D.2d 725, 617 N.Y.S.2d 522, 1994 N.Y. App. Div. LEXIS 9861

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1994
• Status: Published

Opinion

In a proceeding pursuant to Business Corporation Law § 1104 to dissolve a corporation, the petitioner appeals from (1) an order of the Supreme Court, Nassau County (Goldstein, J.), dated May 8, 1992, which, inter alia, granted the respondent’s motion to vacate a restraining notice on his bank account, and (2) a judgment of the same court, entered October 30, 1992, which awarded the respondent $1,000 in attorneys’ fees for frivolous conduct.

Ordered that the order and the judgment are affirmed, with one bill of costs.

We agree with the hearing court’s determination that the petitioner’s actions in entering a default judgment and placing restraining notices on the respondent’s bank accounts without prior notice constituted frivolous conduct. A stipulation of settlement entered into by the parties called for the respondent to pay the petitioner the sum of $10,000 in specified installments. The respondent’s wife inadvertently misdated the check for the final payment January 2, 1991, instead of January 2, 1992, and, as a result, her bank refused to honor the check. This situation could have been rectified simply by issuing a replacement check, had the petitioner brought the mistake to the respondent’s attention. Under the circumstances, it is clear that the petitioner’s act of entering a default judgment against the respondent was intended to harass or maliciously injure the respondent rather than to secure payment pursuant to the terms of the stipulation of settlement (see, 22 NYCRR 130-1.1 [c] [2]). Therefore, the court properly awarded the respondent attorneys’ fees resulting from the petitioner’s frivolous conduct. Sullivan, J. P., Copertino, Pizzuto and Altman, JJ., concur.