GINTHER v. JONES LLP (2006)

 Plaintiff commenced this action against defendants, the attorneys representing plaintiff's adversary in an action in federal district court, seeking damages arising from defendants' alleged possession of certain sealed records from plaintiff's divorce.   Supreme Court properly granted that part of defendants' motion seeking to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7] ) and properly denied plaintiff's cross motion.  “Generally, an action against an attorney by a nonclient third party will not lie” (Singer v. Whitman & Ransom, 83 A.D.2d 862, 863, 442 N.Y.S.2d 26), although “[a]n attorney may be held liable to third parties for fraud or collusion or for a malicious or tortious act” (Key Bank of N. N.Y. v. Lake Placid Co., 103 A.D.2d 19, 31, 479 N.Y.S.2d 862, appeal dismissed 64 N.Y.2d 644, 485 N.Y.S.2d 49, 474 N.E.2d 257;  see Gifford v. Harley, 62 A.D.2d 5, 7, 404 N.Y.S.2d 405).   Here, the facts alleged by plaintiff do not support such liability against defendants (see Key Bank of N. N.Y., 103 A.D.2d at 31, 479 N.Y.S.2d 862).   The record supports the court's determination that plaintiff's conduct in initiating this action was frivolous (see 22 NYCRR 130-1.1[c][1] ), and we decline to disturb the court's exercise of discretion in imposing sanctions (see generally Navin v. Mosquera, 30 A.D.3d 883, 817 N.Y.S.2d 705).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: