GRIER v. Rita W. Warner, nonparty appellant. (1999)

In an action for a divorce and ancillary relief, nonparty Rita W. Warner appeals from an order of the Supreme Court, Westchester County (Shapiro, J.), entered October 9, 1998, which granted the defendant's cross motion for an award of counsel fees and directed her to pay $1,714.60 to the attorneys for the defendant.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the cross motion is denied.

The Supreme Court granted the defendant's cross motion for an award of counsel fees upon finding that the behavior of nonparty Rita W. Warner, the former counsel for the plaintiff, constituted “frivolous conduct” within the meaning of 22 NYCRR 130-1.1. While the appellant's conduct in persistently arguing before the court after being instructed to refrain from doing so might have been punishable pursuant to the court's contempt powers (see generally, Judiciary Law art 19), the court did not attempt to exercise its contempt powers in this case.   Contrary to the finding of the Supreme Court, 22 NYCRR part 130, concerning the imposition of costs and/or sanctions for “frivolous conduct” in civil litigation, is inapplicable in this case (see, Matter of Kernisan v. Taylor, 171 A.D.2d 869, 567 N.Y.S.2d 794).

MEMORANDUM BY THE COURT.