HOUSEHOLD FINANCE CORPORATION III v. Andrew F. Capoccia Law Centers L.L.C., Appellant. (2000)

Appeal from an order of the Supreme Court (Keniry, J.), entered May 24, 1999 in Saratoga County, which, inter alia, imposed sanctions on defendants' counsel.

Plaintiff commenced this breach of contract action against defendants alleging that they failed to make payments under a loan agreement.   Defendants, represented in the action by Andrew F. Capoccia Law Centers L.L.C. (hereinafter Capoccia), served an answer alleging various affirmative defenses and a counterclaim, together with certain discovery demands.   Following service of a reply to the counterclaim but prior to responding to defendants' discovery demands, plaintiff moved for summary judgment.   Defendants opposed the motion and plaintiff's attorney served a reply affidavit requesting sanctions against Capoccia.   Supreme Court granted summary judgment in favor of plaintiff and, upon concluding that the defenses and affirmative defenses interposed by defendants were frivolous, imposed a sanction of $1,000 against Capoccia.   This appeal ensued.

 While a court may impose sanctions for conduct which is deemed frivolous, the party or attorney to be sanctioned must be afforded a reasonable opportunity to be heard on the matter (see, Matter of Rose BB., 262 A.D.2d 805, 807, 692 N.Y.S.2d 237, lv. dismissed 93 N.Y.2d 1039, 697 N.Y.S.2d 560, 719 N.E.2d 920;  Morrison v. Morrison, 246 A.D.2d 634, 667 N.Y.S.2d 312).   In the case at bar, the record does not support a determination that Capoccia was afforded an opportunity to be heard.   Rather, the issue of sanctions was raised for the first time in plaintiff's attorney's affidavit in reply to defendants' papers opposing the motion (see, Matter of Leewen Contr. Corp. v. Department of Sanitation of City of N.Y., 272 A.D.2d 246, 708 N.Y.S.2d 384;  Matter of TIG Ins. Co. v. Pellegrini, 258 A.D.2d 658, 685 N.Y.S.2d 777).   Under the particular circumstances herein, we conclude that the matter must be remitted to allow Capoccia an opportunity to be heard prior to the determination of whether sanctions should be imposed (cf., Curtis v. Scherer, 261 A.D.2d 158, 689 N.Y.S.2d 99, lv. denied 93 N.Y.2d 815, 697 N.Y.S.2d 563, 719 N.E.2d 924;  Matter of Gordon v. Marrone, 202 A.D.2d 104, 110-111, 616 N.Y.S.2d 98, lv. denied 84 N.Y.2d 813, 623 N.Y.S.2d 181, 647 N.E.2d 453).

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as imposed sanctions against Andrew F. Capoccia Law Centers L.L.C.;   the issue of sanctions is remitted to the Supreme Court for further proceedings not inconsistent with this court's decision;  and, as so modified, affirmed.

CARDONA, P.J.

MERCURE, PETERS, CARPINELLO and GRAFFEO, JJ., concur.