Gerard J. Crudele, plaintiff, v. LLP (2023)

Argued—December 5, 2022

DECISION & ORDER

ORDERED that on the Court's own motion, the notice of appeal is deemed to be a notice of appeal by nonparty Krentsel Guzman Herbert, LLP (see CPLR 2001;  Matter of Tagliaferri v. Weiler, 1 NY3d 605);  and it is further,

ORDERED that the appeal from the order is dismissed, as the order was superseded by the judgments;  and it is further,

ORDERED that the judgments are reversed, on the law, on the facts, and in the exercise of discretion, those branches of the separate motions of the defendants Michael Caruso and Lorraine Caruso and the defendants Jennifer C. Price and Smithtown Fire Department which were pursuant to 22 NYCRR 130–1.1 for sanctions in the form of attorneys' fees and costs against nonparty Krentsel Guzman Herbert, LLP, are denied, and the order is modified accordingly;  and it is further,

ORDERED that one bill of costs is awarded to the appellant payable by the defendants Michael Caruso and Lorraine Caruso and the defendants Jennifer C. Price and Smithtown Fire Department.

Pursuant to 22 NYCRR 130–1.1, a court, in its discretion, after a reasonable opportunity to be heard, may impose sanctions against a party or the attorney for a party, or both, for frivolous conduct (see id. § 130–1.1[b], [d] ).  “[C]onduct 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” (id. § 130–1.1[c] ).

Here, the Supreme Court improvidently exercised its discretion in imposing sanctions upon Krentsel Guzman Herbert, LLP, as its conduct was not frivolous within the meaning of 22 NYCRR 130–1.1 (see NHD Nigani, LLC v Angelina Zabel Props., Inc., 161 AD3d 758, 761;  Joan 2000, Ltd. v. Deco Constr.  Corp., 66 AD3d 841, 842;  Wagner v. Goldberg, 293 A.D.2d 527, 528).

BARROS, J.P., BRATHWAITE NELSON, FORD and WARHIT, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court