Opinion
11-26-2014
Wendy TSO–HORIUCHI, appellant, v. Kentaro HORIUCHI, defendant-respondent, Barry J. Gross, et al., nonparty-respondents.
Mitchell L. Perry, White Plains, N.Y., for appellant. Parola & Gross, LLP, Wantagh, N.Y. (Barry J. Gross, nonparty-respondent pro se of counsel), for defendant-respondent.
Mitchell L. Perry, White Plains, N.Y., for appellant.
Parola & Gross, LLP, Wantagh, N.Y. (Barry J. Gross, nonparty-respondent pro se of counsel), for defendant-respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.
Opinion
In a matrimonial action in which the parties were divorced by judgment entered April 10, 2013, the plaintiff appeals from an order of the Supreme Court, Nassau County (Schwartz Zimmerman, J.), dated March 15, 2012, which denied, without a hearing, her motion for the imposition of costs and sanctions against, among others, the defendant and his counsel pursuant to 22 NYCRR 130–1.1.
ORDERED that the order is affirmed, with costs.
A court may impose financial sanctions and/or costs upon a party or attorney who engages in “frivolous conduct” (22 NYCRR 130–1.1 [a]; see Weissman v. Weissman, 116 A.D.3d 848, 849, 985 N.Y.S.2d 93 ). “Conduct is frivolous if (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130–1.1 [c]; see Weissman v. Weissman, 116 A.D.3d at 849, 985 N.Y.S.2d 93 ). “To avoid sanctions, at the least, the conduct must have a good faith basis” (Dank v. Sears Holding Mgt. Corp., 69 A.D.3d 557, 558, 892 N.Y.S.2d 510 ; see Matter of Wecker v. D'Ambrosio, 6 A.D.3d 452, 453, 773 N.Y.S.2d 891 ).
Here, the Supreme Court properly denied, without a hearing, the plaintiff's motion to impose sanctions and costs against, among others, the defendant and his counsel. The challenged conduct did not constitute frivolous conduct (see Tso–Horiuchi v. Horiuchi, 78 A.D.3d 818, 818, 910 N.Y.S.2d 370 ; Dank v. Sears Holding Mgt. Corp., 69 A.D.3d at 558, 892 N.Y.S.2d 510 ). Moreover, contrary to the plaintiff's contention, the submissions in support of her motion were insufficient to warrant a hearing (see 22 NYCRR § 130–1.1 [d] ).