Yeun-Ah Choi v. Shoshan

136 A.D.3d 506, 26 N.Y.S.3d 255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2016
• Docket: 210N 314516/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered July 7, 2015, which, insofar as appealed from, granted plaintiff wife’s cross motion for an award of sanctions, and referred the matter to a special referee to determine the amount of the sanctions, unanimously affirmed, without costs.

The record supports Supreme Court’s finding that defendant’s motion to vacate the so-ordered stipulation wherein he agreed to pay plaintiff’s reasonable interim counsel fees constituted “frivolous” conduct within the meaning of 22 NYCRR 130-1.1 (c) (1), and warranted the imposition of sanctions (see Levy v Carol Mgt. Corp., 260 AD2d 27, 34 [1st Dept 1999]). There was no legal merit to defendant’s motion and we reject his contention that sanctions were not warranted because his motion was based on a good faith argument that was ultimately found to be unpersuasive (see id. at 35; W.J. Nolan & Co. v Daly, 170 AD2d 320, 321 [1st Dept 1991]). Defendant failed to allege any facts, much less prove, that the stipulation was the result of “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR 5015 [a] [3]), or that to enforce the stipulation would be “unjust or inequitable or permit the other party to gain an unconscionable advantage” (Weitz v Murphy, 241 AD2d 547, 548 [2d Dept 1997] [internal quotation marks omitted]). Defense counsel’s claim that he had been “misled” into entering the stipulation was properly rejected, given counsel’s significant legal experience, and the fact that plaintiff never made any representation in the stipulation regarding future increases in her counsel’s average monthly legal fees.

We have considered defendant’s remaining contentions and find them unavailing.

Concur — Sweeny, J.P., Renwick, Manzanet-Daniels and Kapnick, JJ.