Opinion
December 17, 1991
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
The trial court is without authority to impose costs and attorneys' fees in absence of statute or court rule (Matter of A.G. Ship Maintenance Corp. v Lezak, 69 N.Y.2d 1; Armendariz v Tiramisu Rest., 170 A.D.2d 334; Merritt Assocs. v Scollard, 161 A.D.2d 502), and we note that the court specifically disclaimed reliance upon section 130-1.1 of the Rules of the Chief Administrator. The defendants and third-party litigants were required to endure seven days of jury selection, five years after the institution of the litigation, upon the representation of plaintiffs' former counsel that the case was ready to go to trial. Plaintiffs' determination to change attorneys and have the case marked off calendar on the day of trial resulted in a substantial waste of judicial resources as well as the time and effort of defendants' attorneys. Under such circumstances, the matter should be remanded for a hearing to determine whether or not either plaintiffs, their counsel, or both acted frivolously, within the meaning and intent of section 130-1.1 of the Rules of the Chief Administrator and to determine the appropriate allocation of such costs and attorneys' fees, in the event plaintiffs and/or their present or former counsel are determined to have engaged in such conduct.
Concur — Murphy, P.J., Carro, Milonas and Kassal, JJ.