N.Y. Comp. Codes R. & Regs. tit. 22 § 130-1.1 deals with Costs and Sanctions. It states, in pertinent part:
- The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart....
- The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both....
- For purposes of this Part, conduct is frivolous if:
- it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
- it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
- it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, Including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
(22 NYCRR 130-1.1.)
How to Structure the Motion
Under 22 NYCRR §130-1.1[a], a party may be sanctioned for engaging in “frivolous” conduct, meaning conduct that is:
- completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
- undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
- asserts material factual statements that are false. While the filing of multiple motions by plaintiffs resulted in significant devotion of time and resources by defendants, there is insufficient indication that the motions were undertaken primarily to harass defendants, prolong this litigation or that plaintiffs otherwise engaged in sanctionable conduct.
(Seidler v. Knopf (2017) Index # 506453/2014, at *12 citing 22 NYCRR §130-1.1[a].)
Section 130-1.2 concerning Orders awarding costs or imposing sanctions states in relevant part:
“The court may award costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate. An award of costs or the imposition of sanctions or both shall be entered as a judgment of the court. In no event shall the amount of sanctions imposed exceed $10,000 for any single occurrence of frivolous conduct.”
Failure to Appear
Section 130-2.2 concerns the Order for imposing sanctions and costs regarding failure to appear, and states:
The court may impose sanctions or award costs or both only upon a written memorandum decision or statement on the record setting forth the conduct on which the award or imposition is based and the reasons why the court found the attorney's failure to appear at a scheduled court appearance to be without good cause. The imposition of sanctions or an award of costs or both shall be entered as a judgment of the court. In no event shall the total amount of sanctions imposed and costs awarded exceed $2,500 for any single failure to appear at a scheduled court appearance.
“CPLR 3126 provides a court with a broad range of options in addressing a party's discovery abuses. In making its determination of the appropriate sanction, the court must consider the degree to which the contumacious conduct or destruction of evidence prejudiced the other party.” (Melcher v. Apollo (2013) Medical Fund Management L.L.C., 105 A.D.3d 15.)
The Court’s Decision
“The Special Referee's determination of defendants' reasonable attorneys' fees and costs to be paid by plaintiff as a sanction for discovery abuses is supported by the record. (Zacharius v. Kensington Publ'g Corp. (2018) 167 A.D.3d 452, 453, citing Kaplan v Einy (1994) 209 A.D.2d 248, 250-251.) The evidence includes the testimony of the experienced attorneys who performed the relevant services and the invoices sent to the clients, which describe the services in detail and the time spent each day, and which, the attorneys testified, were prepared contemporaneously with the services rendered (Zacharius, citing generally Matter of Freeman (1974) 34 NY2d 1, 9.) Plaintiff failed to present any evidence that the time spent by defendants' attorneys was duplicative or unreasonable.” (Zacharius v. Kensington Publ'g Corp. (2018) 167 A.D.3d 452, 453.)
Where plaintiff, an attorney representing himself, pursued an appeal which was "completely without merit" (22 NYCRR 130-1.1 [c] ), the court found that the plaintiff's assertion that his intent was to clear his name in no way diminished the fact that the appeal was meritless. (Weinstock v. Weinstock (1998) 253 A.D.2d 873, 874.) The court has found that “merit must be judged with reference to whether a particular course of litigation is or is not designed to obtain some real form of relief as a remedy for some cognizable wrong. The appeal taken by the plaintiff was completely without merit under this standard, and, in the absence of any other concrete motivation, the appeal can only have been intended to harass the defendant within the meaning of 22 NYCRR 130-1.1(c)(2), by needlessly forcing her to incur attorney's fees.” (Id.)
The Weinstock court awarded the maximum authorized amount as a sanction for plaintiff Weinstock's conduct [$3,000 to counsel for the defendant Weinstock, and to personally pay a sanction in the amount of $10,000 to the Lawyers' Fund for Client Protection established pursuant to State Finance Law § 97-t] stating that “frivolous litigation causes a substantial waste of judicial resources to the detriment of those litigants who come to the Court with real grievances.” (Id.)