Opinion
2008-1772 RI C.
Decided February 1, 2010.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered August 25, 2008. The order, insofar as appealed from, denied the branches of defendant Katherine Helbig's motion seeking an award of costs and the imposition of sanctions against plaintiff's counsel, Evan C. Hammerman, Esq.
ORDERED that the order, insofar as appealed from, is affirmed without costs.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ.
Plaintiff brought the instant action against both a corporate defendant and its president, Katherine Helbig, seeking damages for alleged breach of a contract between plaintiff and the corporate defendant. No basis was alleged for proceeding against Helbig, either in the pleadings or at any other point in the litigation.
Defendants initially defaulted, but their attorney thereafter sent plaintiff's counsel, Evan C. Hammerman, a demand for a complaint. However, defendants' attorney did not file a notice of appearance, a demand for a complaint, or an answer. After receiving the demand for a complaint, Hammerman, instead of providing a formal complaint, caused a default judgment to be entered against both defendants on August 7, 2007.
Following negotiations, on August 22, 2007 and again on August 30, 2007, Hammerman transmitted a proposed stipulation for settlement of the case against the corporate defendant. Pursuant to said proposed settlement, the corporate defendant was to make three consecutive monthly payments, payable to Evan C. Hammerman, as attorney, in full settlement of the action. On the accompanying facsimile transmittal sheet, dated August 22, 2007, Hammerman represented that, upon receipt of the executed stipulation of settlement, along with the first of the stipulated payments on or before September 15, 2007, his office would promptly file with the court a discontinuance of the action with respect to the individual defendant, Helbig. After missing the September 15th deadline for payment, the corporate defendant executed the stipulation of settlement on September 21, 2007; the stipulation failed to set forth when the discontinuance as to Helbig was to be filed.
Hammerman did not file the discontinuance as against Helbig and, instead, caused restraints to be placed on both defendants' bank accounts; the restraints on Helbig's accounts have since been lifted.
Helbig thereupon moved to vacate the default judgment as against her, to dismiss the action as against her, and for an award of costs and the imposition of sanctions against Hammerman pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1. Her motion was granted in all respects except the demand for sanctions and costs, and she appeals the order insofar as it denied same.
Pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1, a court may award costs against and impose sanctions upon any party or attorney who has engaged in frivolous conduct. Under the rule, the discretion to determine whether an attorney's conduct is frivolous is vested primarily in the motion court. Given the ambiguity of the stipulation of settlement as to the timing of the filing of a discontinuance against Helbig, and Helbig's failure to return the signed stipulation within the time specified under the stipulation, we find that the Civil Court's decision not to award costs and impose sanctions did not constitute an improvident exercise of its discretion. Accordingly, we affirm the Civil Court's order, insofar as appealed from, denying the branches of Helbig's motion seeking an award of costs and the imposition of sanctions.
Pesce, P.J., Weston and Rios, JJ., concur.