Richard M. Egloff, appellant, v. LLP (2011)

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

Richard M. Egloff, appellant, v. Town of Lewisboro, et al., defendants/respondents, Wormser, Kiely, Galef & Jacobs, LLP, defendant/respondent-respondent;  Danzig Fishman & Decea, nonparty-appellant.

2010–07106 (Index No. 13865 /09)

Decided: November 09, 2011

PETER B. SKELOS, J.P. RUTH C. BALKIN JOHN M. LEVENTHAL PLUMMER E. LOTT, JJ.

Danzig Fishman & Decea, White Plains, N.Y. (Thomas B. Decea and Yenisey Rodriguez–McCloskey of counsel), nonparty-appellant pro se and for appellant. Wormser, Kiely, Galef & Jacobs, LLP, White Plains, N.Y. (John T. Morin and Daniel Pozin of counsel), defendant/respondent-respondent pro se. In a hybrid action, inter alia, to enjoin the defendants/respondents from evicting the plaintiff/petitioner from the subject property, and proceeding pursuant to CPLR article 78, in effect, to compel the Town of Lewisboro and Joann Vasi, Enforcing Officer of the Town of Lewisboro, to set aside the transfer of a deed to real property previously owned by the plaintiff/petitioner, the plaintiff/petitioner and nonparty Danzig Fishman & Decea, the attorney for the plaintiff/petitioner, appeal from a judgment of the Supreme Court, Westchester County (Loehr, J.), entered June 15, 2010, which, upon an order of the same court entered March 22, 2010, granting the motion of Wormser, Kiely, Galef & Jacobs, LLP, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint/petition insofar as asserted against it, and for an award of costs and attorneys' fees, payable by Danzig Fishman & Decea pursuant to 22 NYCRR 130–1.1, and upon an order of the same court entered June 15, 2010, adhering, upon reargument, to the original determination and calculating the amount of costs and attorneys' fees owed, is in favor of Wormser, Kiely, Galef & Jacobs, LLP, and against the plaintiff/petitioner, dismissing the complaint/petition insofar as asserted against it and awarding costs and attorneys' fees in the sum of $45,833.62, payable by Danzig Fishman & Decea. The Supreme Court properly dismissed the amended complaint/petition insofar as asserted against the defendant Wormser, Kiely, Galef & Jacobs, LLP (see CPLR 3211[a][1], [a][7] ).   While we agree with the Supreme Court that Danzig, Fishman & Decea, as counsel for the plaintiff/petitioner, engaged in frivolous conduct, we find that, under the circumstances, a sanction in the sum of $7,500 is the more appropriate sanction, and we modify the judgment accordingly (see 22 NYCRR 130–1.1).