Joseph Paukman, appellant, v. Marland Kaplan, et al., respondents, et al., defendants. (2026)

Argued—November 20, 2025

DECISION & ORDER

Q/

In an action, inter alia, to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Kings County (Robin K. Sheares, J.), dated November 2, 2023.  The order, insofar as appealed from, granted that branch of the motion of the defendants Marland Kaplan and Mikhail Usher which was pursuant to 22 NYCRR 130–1.1 for costs in the form of attorneys' fees to the extent of awarding those defendants attorneys' fees in the sum of $17,100.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against, among others, the defendants Marland Kaplan and Mikhail Usher (hereinafter together the defendants), alleging, inter alia, that Kaplan and his attorney, Usher, defamed the plaintiff in order to steal business from an unnamed competing medical practice.  The defendants moved, among other things, pursuant to 22 NYCRR 130–1.1 for costs in the form of attorneys' fees.  In an order dated November 2, 2023, the Supreme Court, inter alia, granted that branch of the defendants' motion to the extent of awarding the defendants attorneys' fees in the sum of $17,100.  The plaintiff appeals.

“Pursuant to 22 NYCRR 130–1.1, a court, in its discretion, after a reasonable opportunity to be heard, may impose costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorneys' fees, and/or sanctions against a party or the attorney for a party, or both, for frivolous conduct” (Matter of Hunte v. Jones, 221 AD3d 813, 815).  “ ‘[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’ ” (Whelan v. Busiello, 219 AD3d 778, 780–781, quoting 22 NYCRR 130–1.1[c] ).  “ ‘In determining whether the conduct undertaken was frivolous, the court shall consider ․ the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party’ ” (M & T Bank v. Friedmann, 217 AD3d 934, 936, quoting 22 NYCRR 130–1.1[c] ).

Here, the Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was pursuant to 22 NYCRR 130–1.1 for costs in the form of attorneys' fees to the extent of awarding the defendants attorneys' fees in the sum of $17,100.  Although the court should have set forth, pursuant to 22 NYCRR 130–1.2, the conduct on which the sanction was based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate, under the circumstances of this case, the record demonstrates that the plaintiff engaged in frivolous conduct by, among other things, commencing this action and three other actions in an attempt to harass certain defendants in violation of an order of protection, maintaining this action after receiving notice from the defendants' counsel of the lack of a factual basis for this action, and engaging in conduct identical to that which the plaintiff had been sanctioned for in previous cases (see Madigan v. Berkeley Capital, LLC, Sup Ct, Kings County, Aug. 25, 2023, Maslow, J., index No. 516351/17).

The plaintiff's contention that the Supreme Court should have held an evidentiary hearing before awarding attorneys' fees is without merit.  Where a party expressly requests attorneys' fees pursuant to 22 NYCRR 130–1.1 against a party in motion papers, and that party is afforded an opportunity to be heard and to oppose the motion, a hearing is not required (see id. § 130–1.1[d];  Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway, 76 N.Y.2d 411, 413;  Matter of Ruth S. [Sharon S.], 125 AD3d 978, 980).  Here, the defendants moved, among other things, for the imposition of costs in the form of attorneys' fees pursuant to 22 NYCRR 130–1.1, and the plaintiff was given notice of the defendants' motion, had a reasonable opportunity to be heard in opposition thereto, and submitted opposition to the motion (see Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway, 76 N.Y.2d at 413;  Liang v. Wei Ji, 155 AD3d 1018, 1020;  Duncan v. Popoli, 105 AD3d 803, 804–805).

The parties' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to 22 NYCRR 130–1.1 for costs in the form of attorneys' fees to the extent of awarding the defendants attorneys' fees in the sum of $17,100.

DUFFY, J.P., CONNOLLY, LOVE and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court