RENNIE OTOTE v. Grace Nwachukwu, nonparty-appellant. (2005)

In a matrimonial action in which the parties were divorced by judgment dated December 18, 2001, the defendant former husband and his attorney, Grace Nwachukwu, separately appeal, from so much of an order of the Supreme Court, Kings County (Platt, J.H.O.), dated July 29, 2003, as granted the plaintiff's cross motion to impose an award of an attorney's fee and a sanction pursuant to 22 NYCRR 130-1.1 against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion is denied.

 Under the circumstances of this case, to wit, the attempted filing of three identical motions for leave to reargue, only one of which was properly calendared, there was no evidence that the motions were undertaken primarily to delay or prolong the litigation (see Stow v. Stow, 262 A.D.2d 550, 694 N.Y.S.2d 68).   Moreover, the Supreme Court did not follow the proper procedure to impose an award of an attorney's fee and a sanction, i.e., it failed to specify in a written decision the conduct upon which the award was based, the reasons why it found the conduct to be frivolous, and the reasons the sanction was fixed in the amount indicated (see 22 NYCRR 130-1.2;  Hamilton v. Cordero, 10 A.D.3d 702, 781 N.Y.S.2d 907;  Miller v. DeCongilio, 269 A.D.2d 504, 704 N.Y.S.2d 506;  Gossett v. Firestar Affiliates, 224 A.D.2d 487, 637 N.Y.S.2d 779).