Ferrara v. Ferrara

276 A.D.2d 741, 715 N.Y.S.2d 161, 2000 N.Y. App. Div. LEXIS 10915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 2000
• Status: Published

Opinion

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Suffolk County (Austin, J.), dated December 28, 1999, which denied his motion to vacate so much of a prior order of the same court, dated November 1, 1999, as directed him to pay an interim expert’s fee, and, sua sponte, imposed a sanction upon him in the sum of $750.

Ordered that on the Court’s own motion, that portion of the notice of appeal as purports to appeal as of right from the provision of the order which sua sponte imposed a sanction upon the defendant is treated as an application for leave to appeal from that provision of the order, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further

Ordered that the order dated December 28, 1999, is modified by deleting the provision thereof sua sponte imposing a sanction in the sum of $750; as so modified, the order is affirmed, without costs or disbursements.

Under the circumstances presented, the Supreme Court did not err in directing the defendant to páy an interim expert’s fee (see, Domestic Relations Law § 237 [d]). However, the court should not have imposed a sanction upon him for frivolous motion practice (see, Velasquez v C.F.T., Inc., 267 AD2d 229; Delloiaco v City of New York, 174 AD2d 705; Pagan v Penthouse Mfg. Co., 121 AD2d 374; Cohalan v Johnson Elec. Constr. Corp., 105 AD2d 770; CPLR 5701). Ritter, J. P., S. Miller, Friedmann and Florio, JJ., concur.