Opinion
436 CA 23-00203
07-28-2023
Arthur SAMODOVITZ, Plaintiff-Appellant, v. UNITED HEALTH SERVICES HOSPITALS, INC., Levene, Gouldin & Thompson and Elizabeth Sopinski, Defendants-Respondents. (Action No. 1.) Arthur Samodovitz, Plaintiff-Appellant, v. Levene, Gouldin & Thompson and Jordan Charnetsky, Defendants-Respondents. (Action No. 2.)
ARTHUR SAMODOVITZ, PLAINTIFF-APPELLANT PRO SE. BARCLAY DAMON, LLP, ALBANY (MARK T. WHITFORD, JR., OF COUNSEL) FOR DEFENDANT-RESPONDENT UNITED HEALTH SERVICES HOSPITALS, INC. LEVENE GOULDIN & THOMPSON, LLP, VESTAL (JARED R. MACK OF COUNSEL), FOR DEFENDANTS-RESPONDENTS LEVENE, GOULDIN & THOMPSON, ELIZABETH SOPINSKI AND JORDAN CHARNETSKY.
ARTHUR SAMODOVITZ, PLAINTIFF-APPELLANT PRO SE.
BARCLAY DAMON, LLP, ALBANY (MARK T. WHITFORD, JR., OF COUNSEL) FOR DEFENDANT-RESPONDENT UNITED HEALTH SERVICES HOSPITALS, INC.
LEVENE GOULDIN & THOMPSON, LLP, VESTAL (JARED R. MACK OF COUNSEL), FOR DEFENDANTS-RESPONDENTS LEVENE, GOULDIN & THOMPSON, ELIZABETH SOPINSKI AND JORDAN CHARNETSKY.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by reducing the award of attorney's fees and costs payable to defendant United Health Services Hospitals, Inc. to $10,000 and to defendant Levene, Gouldin & Thompson to $10,000, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced these actions sounding in fraud and negligence and seeking damages arising from allegedly false affidavits filed by defendant Levene, Gouldin & Thompson (LGT), a law firm, on behalf of its client, defendant United Health Services Hospitals, Inc. (UHSH), in a previous action between UHSH and plaintiff. Supreme Court dismissed the actions, found them to be frivolous, and awarded attorney's fees and costs to UHSH in the amount of $17,789.62 and to LGT in the amount of $15,447.08. Although we reject plaintiff's contention that the court abused its discretion in finding the actions frivolous, we agree with plaintiff that the court erred in awarding costs and fees pursuant to 22 NYCRR 130-1.1 rather than CPLR 8303-a (see Neroni v. Follender , 137 A.D.3d 1336, 1339, 26 N.Y.S.3d 621 [3d Dept. 2016], appeal dismissed 27 N.Y.3d 1147, 37 N.Y.S.3d 61, 57 N.E.3d 1099 [2016], rearg denied 28 N.Y.3d 1024, 42 N.Y.S.3d 675, 65 N.E.3d 704 [2016] ; see generally Pilatich v. Town of New Baltimore , 188 A.D.3d 1386, 1387-1388, 136 N.Y.S.3d 177 [3d Dept. 2020] ; Patane v. Griffin , 164 A.D.2d 192, 197, 562 N.Y.S.2d 1005 [3d Dept. 1990], lv denied 77 N.Y.2d 810, 571 N.Y.S.2d 913, 575 N.E.2d 399 [1991] ). Moreover, inasmuch as " ‘[b]y the express terms of CPLR 8303-a (a), an award [to a successful party] of costs and reasonable [attorney's] fees for frivolous litigation may not exceed [$10,000]’ " ( Pilatich , 188 A.D.3d at 1388, 136 N.Y.S.3d 177 ; see Zysk v. Kaufman, Borgeest & Ryan , LLP , 53 A.D.3d 482, 483, 862 N.Y.S.2d 72 [2d Dept. 2008] ), we further agree with plaintiff that the awards must be reduced. We therefore modify the order by reducing the "award to a total of $20,000, representing $10,000 for" UHSH and $10,000 for LGT ( Pilatich , 188 A.D.3d at 1389, 136 N.Y.S.3d 177 ).