N.Y. Lounge Group, LLC v. Sullivan

33 A.D.3d 515, 823 N.Y.S.2d 49

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Louis B. York, J.), entered on or about March 7, 2006, which granted the motion of defendant stakeholder Lori A. Sullivan, Esq., to dismiss the complaint to the extent it asserted causes of action against her, and for costs pursuant to 22 NYCRR 130-1.1 (a), awarding her $7,500, unanimously modified, on the facts, to reduce the award to $3,600, and otherwise affirmed, without costs.

The record supports a finding that appellant engaged in frivolous conduct as defined in 22 NYCRR 130-1.1 (c). Despite stakeholder Sullivan’s written acknowledgment that she would retain the down payment in the transaction in escrow, after counsel for the buyers objected to its release to the sellers, and despite the court’s memorialization of Sullivan’s representation that she would hold the money in escrow, appellant instituted and continued a lawsuit in which he asserted claims against Sullivan personally, and then amended his complaint to assert further causes of action. Under the circumstances, the lawsuit against Sullivan was utterly without legal or factual basis, and appellant’s conduct was, accordingly, frivolous.

However, inasmuch as Sullivan only sought the award of attorney’s fees in the amount of $3,600, the bona fides of which appellant does not challenge, and the court’s decision does not offer a rationale for the award of $7,500, we reduce the award accordingly. Concur—Mazzarelli, J.E, Friedman, Nardelli, Williams and Malone, JJ.