Fontilus v. Pereira

Appellate Division of the Supreme Court of New York

Fontilus v. Pereira

82 A.D.3d 1040, 918 N.Y.2d 884

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 22, 2011

StatusPublished

Cited by2 cases

This text of 82 A.D.3d 1040 (Fontilus v. Pereira) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fontilus v. Pereira, 82 A.D.3d 1040, 918 N.Y.2d 884 (N.Y. Ct. App. 2011).

Pincite

Opinion

The Supreme Court properly denied those branches of the plaintiffs motion and cross motion which were for an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1 (a). Contrary to the plaintiffs contention, an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1 (a) was not warranted, inasmuch as the conduct of the defendant Dinkes & Schwitzer in the underly[1041]*1041ing personal injury action was not frivolous within the meaning of 22 NYCRR 130-1.1 (c) (see 22 NYCRR 130-1.1 [c]; Carrasquilla v City of New York, 78 AD3d 635, 639 [2010]; Joan 2000, Ltd. v Deco Constr. Corp., 66 AD3d 841, 842 [2009]). Nor was there any other basis on which to award an attorney’s fee under the circumstances of this case.

The Supreme Court improvidently exercised its discretion in denying those branches of the plaintiffs motion which were to amend the caption (see Kiaer v Gilligan, 63 AD3d 1009, 1010 [2009]; Holster v Ross, 45 AD3d 640 [2007]; Kingalarm Distribs. v Video Insights Corp., 274 AD2d 416, 417 [2000]), and for leave to serve a supplemental summons and an amended complaint adding William Schwitzer as an additional defendant (see Kiaer v Gilligan, 63 AD3d at 1011).

The plaintiffs remaining contentions either are without merit or need not be reached in light of our determination. Rivera, J.E, Balkin, Leventhal and Hall, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

The Supreme Court properly denied those branches of the plaintiffs motion and cross motion which were for an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1 (a). Contrary to the plaintiffs contention, an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1 (a) was not warranted, inasmuch as the conduct of the defendant Dinkes & Schwitzer in the underly[1041]*1041ing personal injury action was not frivolous within the meaning of 22 NYCRR 130-1.1 (c) (see 22 NYCRR 130-1.1 [c]; Carrasquilla v City of New York, 78 AD3d 635, 639 [2010]; Joan 2000, Ltd. v Deco Constr. Corp., 66 AD3d 841, 842 [2009]). Nor was there any other basis on which to award an attorney’s fee under the circumstances of this case.

The Supreme Court improvidently exercised its discretion in denying those branches of the plaintiffs motion which were to amend the caption (see Kiaer v Gilligan, 63 AD3d 1009, 1010 [2009]; Holster v Ross, 45 AD3d 640 [2007]; Kingalarm Distribs. v Video Insights Corp., 274 AD2d 416, 417 [2000]), and for leave to serve a supplemental summons and an amended complaint adding William Schwitzer as an additional defendant (see Kiaer v Gilligan, 63 AD3d at 1011).

The plaintiffs remaining contentions either are without merit or need not be reached in light of our determination. Rivera, J.E, Balkin, Leventhal and Hall, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

82 A.D.3d 1040, 918 N.Y.2d 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fontilus-v-pereira-nyappdiv-2011.

Opinion

Related

Cite This Page — Counsel Stack