Opinion
06-30-2015
Elizabeth ELTING, etc., Plaintiff–Appellant, v. Philip SHAWE, Defendant–Respondent, Transperfect Global, Inc., et al., Nominal Defendants. In re Elizabeth Elting, etc., Petitioner–Appellant, For the Dissolution of Transperfect Translations International, Inc. Kramer Levin Naftalis & Frankel LLP, Nonparty Appellant.
Kramer Levin Naftalis & Frankel LLP, New York (Philip S. Kaufman of counsel), for appellants. Kaplan Rice, New York (Howard J. Kaplan of counsel), for respondent.
Kramer Levin Naftalis & Frankel LLP, New York (Philip S. Kaufman of counsel), for appellants.
Kaplan Rice, New York (Howard J. Kaplan of counsel), for respondent.
Opinion Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered January 9, 2015, which granted defendant Shawe's motion for costs and legal fees against plaintiff Elting and her counsel, Kramer Levin Naftalis & Frankel LLP, unanimously reversed, on the law and the facts, without costs, and the motion denied.
The motion court's factual determination that Elting and Kramer Levin became aware of their mistaken representations, and failed to promptly notify defendant or the court of them, is not based on a fair interpretation of the evidence (see Grozea v. Lagoutova, 67 A.D.3d 611, 888 N.Y.S.2d 507 [1st Dept.2009] [imposition of costs and/or sanctions is not entitled to deference if there is a clear abuse of discretion] ). The record shows that it was defendant, not plaintiff, who discovered plaintiff's misstatements in her complaint, and that defendant, rather than notifying plaintiff or the court of the misstatements, moved to dismiss the complaint. Moreover, the misstatements, while inaccurate, are not material (22 NYCRR 130–1.1 [c][3]; Bahamonde v. State of New York, 269 A.D.2d 551, 552, 707 N.Y.S.2d 117 [2d Dept.2000] ). Accordingly, defendant is not entitled to costs and fees pursuant to 22 NYCRR 130–1.1.
TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, CLARK, JJ., concur.