David Fink, Nonparty- Appellant, Caren Stanley, et al., Nonparty-Respondents. v. << (2011)

Supreme Court, Appellate Division, First Department, New York.

David Fink, Nonparty- Appellant, Caren Stanley, et al., Nonparty-Respondents.

4508- 4620 04 4509

Decided: March 15, 2011

Mazzarelli, J.P., Sweeny, DeGrasse, Freedman, Abdus-Salaam, JJ.

David Fink, appellant pro se. Markewich and Rosenstock, LLP, New York (Lawrence M. Rosenstock of counsel), for Caren Stanley, respondent. Lewis Brisbois Bisgaard & Smith LLP, New York (Mark K. Anesh of counsel), and Goldfinger & Lassar LLP, New York (Christine M. Finn of counsel), for Stanley Salomon, respondent. Pollack Pollack Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), for Betty Weinberg Ellerin, respondent. _ Order, Surrogate's Court, New York County (Troy K. Webber, S.), entered on or about December 28, 2009, which, inter alia, confirmed the reports of the Special Referee dated February 25, 2009, March 11, 2009, and May 8, 2009, granted the Special Referee's request for fees in the total amount of $89,985.40, and ordered that appellant pay $69,226.40 as his share of such fees, unanimously affirmed, with costs. Appeal from order, same court and Surrogate, entered June 9, 2009, which, inter alia, confirmed the parties' settlement agreement, unanimously dismissed, without costs, as taken from an order that is not appealable as of right. The matter is remanded for determination of reasonable expenses and attorneys' fees incurred in responding to these appeals, to be payable by appellant to respondents pursuant to 22 NYCRR 130-1.1, and for entry of judgment in that amount. Initially, we note that the June 2009 order “is not appealable as of right because it is not an order which determined a motion made upon notice” (Postel v New York Univ. Hosp., 262 A.D.2d 40, 41 [1999]; see Santoli v 475 Ninth Ave. Assoc., LLC, 38 AD3d 411, 414 [2007] ). Surrogate's Court properly consolidated the multiple proceedings relating to the estate, since they involved common questions of law and fact (see SCPA 501), and properly referred the entire matter to the Special Referee with the caption “In the Matter of the Estate of Carl Levine, Deceased,” containing the same file number used for all the various proceedings. Appellant never objected to this consolidation or to the reference. Further, the parties' settlement agreement expressly confirmed that it was resolving all of the various proceedings together, provided that the court and referee retained jurisdiction over the matter, and authorized the referee to determine various issues as set forth in the agreement. Stipulations of settlement are not lightly cast aside (Hallock v State of New York, 64 N.Y.2d 224, 230 [1984] ) and parties are free to chart their own procedural course and to stipulate as they please (Mitchell v New York Hosp., 61 N.Y.2d 208, 214 [1984] ). In any event, to the extent appellant challenges the caption utilized by the court, even were the caption somehow erroneous, it is well settled that captions should be liberally construed and defects, mistakes and irregularities in form should be disregarded unless demonstratively prejudicial or a timely objection has been made (see Tilden Dev. Corp. v Nicaj, 49 AD3d 629 [2008]; Hoot Group, Inc. v Caplan, 9 AD3d 448 [2004],lv. denied3 NY3d 611 [2004] ). Here, appellant failed to make a timely objection to the caption and was not prejudiced, as he was able to participate in the proceeding. Thus, there is no basis for appellant

‘s contention that a separate special proceeding was needed to effectuate the confirmation of the referee's reports and the terms of the parties' settlement agreement. Nor is there merit to appellant's claim that the orders on appeal were improperly made “outside a pending special proceeding.”

The referee did not act outside of her authority, as the settlement agreement explicitly granted the referee the authority to determine various disputes after the execution of the agreement. Nor was the referee required to commence a special proceeding to obtain an award of fees.

Appellant's assertion that no one has standing to oppose this appeal is frivolous. Pursuant to CPLR 5511, a respondent is not required to be an aggrieved party. Rather, pursuant to that provision, a respondent is the adverse party to the appellant, a requirement which respondents clearly meet.

Pursuant to 22 NYCRR 130-1.1(a), a court “in its discretion, may award to any party or attorney in any civil action or proceeding before the court ․ costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct[,]” and, in “addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part.” “Under part 130 of the Rules, frivolous appellate litigation may be found to exist where the appellate arguments raised are completely without merit in law or fact, where the appeal is undertaken primarily to delay or prolong the litigation or to harass or maliciously injure another, or where the party or attorney asserts material factual statements that are false (22 NYCRR 130-1.1[c] [additional citations omitted] )” (Yenom Corp. v. 155 Wooster St., 33AD3d 67, 70 [2006] ).

In this case, appellant, a pro se attorney, failed to prepare an appropriate appendix, and in response to a motion questioning the sufficiency of the appendix suggested that the proceeding never existed and thus there was no record on appeal for him to provide. His arguments on appeal raise jurisdictional issues which are entirely without merit and find no support in the procedural history of this matter. The Surrogate's Court, in its October 19, 2009 memorandum decision, swiftly rejected each of the arguments appellant makes to this Court. In addition, the record reveals that appellant harassed the court, the referee and the parties, and behaved maliciously and disrespectfully.

There can be no good faith basis for any of the arguments made on appeal, and the only fair conclusion is that the prosecution of this appeal was meant to delay or prolong the litigation or to harass respondents. Accordingly, we find that these appeals were entirely frivolous within the meaning of 22 NYCRR 130-1.1.

The appropriate remedy for maintaining a frivolous appeal is the award of costs in the amount of the reasonable expenses and attorneys' fees incurred in responding to the appeal (see Yenom Corp. v. 155 Wooster St. Inc., 33 AD3d 67 [2006], supra ). Thus, we remand the matter to Surrogate's Court for a determination of the amount of expenses and attorneys' fees incurred by

respondents in responding to these appeals, and for entry of an appropriate judgment as against appellant.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK

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