Rodrigues v. Caetano

Appellate Division of the Supreme Court of New York

Rodrigues v. Caetano

49 A.D.3d 707, 856 N.Y.2d 150

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

DecidedMarch 18, 2008

StatusPublished

This text of 49 A.D.3d 707 (Rodrigues v. Caetano) 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

Rodrigues v. Caetano, 49 A.D.3d 707, 856 N.Y.2d 150 (N.Y. Ct. App. 2008).

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Opinion

The Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was for costs against the plaintiff for engaging in frivolous conduct. Conduct is frivolous if “it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1 [c] [2]). Since the plaintiff admitted that after commencing the action he no longer wanted to pursue it, and took no steps to discontinue the action, awarding costs to the defendant to reimburse him for [708]*708actual expenses and attorney’s fees reasonably incurred to defend against and to obtain dismissal of the action was proper (see 22 NYCRR 130-1.1 [a]; Moran v Regency Sav. Bank, F.S.B., 20 AD3d 305, 306-307 [2005]; Timoney v Newmark & Co. Real Estate, 299 AD2d 201, 202 [2002]; Janitschek v Trustees of Friends World Coll., 249 AD2d 368, 369 [1998]; cf. Juron & Minzner v State Farm Ins. Co., 303 AD2d 463 [2003]).

Furthermore, the Supreme Court properly articulated the basis for its determination pursuant to 22 NYCRR 130-1.2.

The plaintiffs remaining contention is without merit. Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.

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The Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was for costs against the plaintiff for engaging in frivolous conduct. Conduct is frivolous if “it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1 [c] [2]). Since the plaintiff admitted that after commencing the action he no longer wanted to pursue it, and took no steps to discontinue the action, awarding costs to the defendant to reimburse him for [708]*708actual expenses and attorney’s fees reasonably incurred to defend against and to obtain dismissal of the action was proper (see 22 NYCRR 130-1.1 [a]; Moran v Regency Sav. Bank, F.S.B., 20 AD3d 305, 306-307 [2005]; Timoney v Newmark & Co. Real Estate, 299 AD2d 201, 202 [2002]; Janitschek v Trustees of Friends World Coll., 249 AD2d 368, 369 [1998]; cf. Juron & Minzner v State Farm Ins. Co., 303 AD2d 463 [2003]).

Furthermore, the Supreme Court properly articulated the basis for its determination pursuant to 22 NYCRR 130-1.2.

The plaintiffs remaining contention is without merit. Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.

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Bluebook (online)

49 A.D.3d 707, 856 N.Y.2d 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodrigues-v-caetano-nyappdiv-2008.

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