JALOR COLOR GRAPHICS INC v. UNIVERSAL ADVERTISING SYSTEMS INC (2002)

Orders dated December 27, 1999 and January 21, 2000 (Rolando T. Acosta, J.) imposing Rule 130 (22 NYCRR 130-1.1) sanctions upon nonparty Fred Rosenberg, affirmed, without costs.

Appeal from order dated December 27, 1999 (Rolando T. Acosta, J.) denying defendant's motion for an award of sanctions and other relief, dismissed, without costs, as abandoned.

 We consider the appeal on the merits even though nonparty-appellant Rosenberg, defendant's trial counsel, did not appeal the judgment that implemented the order he did appeal (CPLR 5501[c];  see, Molinaro v. Bedke, 281 A.D.2d 242, 721 N.Y.S.2d 534).   Reaching the merits, we find no abuse of discretion in the sanctions awards against defense counsel based upon his frivolous and vexatious litigation practices in this action (see, Matter of Scifo, 272 A.D.2d 335, 714 N.Y.S.2d 680).   As Civil Court appropriately recognized, the threats of criminal prosecution made by defense counsel during the course of the underlying civil lawsuit were “part of a calculated, deliberate strategy designed to harass plaintiff into folding its litigation hand, ․ and cannot be tolerated.”  (183 Misc.2d 294, 299, 703 N.Y.S.2d 370.)   From a procedural standpoint, we note that the court was not required to hold a formal evidentiary hearing before finding defense counsel's conduct frivolous (see, Matter of Marsh, 207 A.D.2d 749, 616 N.Y.S.2d 962;  22 NYCRR 130-1.1[d] ), particularly since neither defendant nor its counsel submitted any meaningful response to the serious allegations of attorney misconduct specified by plaintiff.

Leave to appeal to the Appellate Division, First Department denied;  reargument granted and, upon reargument, the decision and order of this Court entered on June 5, 2002 (191 Misc.2d 653, 743 N.Y.S.2d 801) recalled and vacated and a new decision and order substituted therefor.

PER CURIAM.