LLC v. Blueshyft, Inc., etc., et al., defendants; Mark Yosef, nonparty-Appellant. (2026)

Submitted—November 4, 2022

DECISION & ORDER ON MOTION

G/

Motion by the appellant, inter alia, for leave to reargue an appeal from an amended order of the Supreme Court, Nassau County (Thomas Feinman, J.), dated June 3, 2020, which was determined by decision and order of this Court dated December 14, 2022.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion is granted to the extent that leave to reargue is granted, upon reargument, the decision and order of this Court dated December 14, 2022 (Merchant Cash & Capital, LLC v. Blueshyft, Inc., 211 AD3d 836), is recalled and vacated, the following decision and order is substituted therefor, and the motion is otherwise denied:

In an action to recover damages for breach of contract, nonparty Mark Yosef appeals from an amended order of the Supreme Court, Nassau County (Thomas Feinman, J.), dated June 3, 2020.  The amended order, upon remittur from this Court (see Merchant Cash & Capital, LLC v Blueshyft, Inc., 175 AD3d 603), directed nonparty Mark Yosef to pay a sanction in the amount of $1,500 to the Lawyers' Fund for Client Protection, with an explanation of the reasons for the sanction.  Justice Landicino has been substituted for former Justice Rivera (see 22 NYCRR 1250.1[b] ).

ORDERED that the amended order is reversed, on the law and in the exercise of discretion, without costs or disbursements.

A court, in its discretion, may award a party costs in the form of reimbursement for actual expenses incurred and reasonable attorney's fees where an opposing party has engaged in frivolous conduct (see 22 NYCRR 130–1.1[a];  U.S. Bank N.A. v. Jack, 219 AD3d 1369, 1372).  Conduct is frivolous under 22 NYCRR 130–1.1(c), inter alia, if it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (id. § 130–1.1[c][2];  see Madigan v. Berkeley Capital, LLC, 205 AD3d 900, 907).

Here, the conduct of Mark Yosef, the defendants' counsel, was not frivolous within the meaning of 22 NYCRR 130–1.1(c).  Accordingly, the Supreme Court improvidently exercised its discretion in imposing a sanction against Yosef (see Fagan v. Gorbatko, 244 AD3d 946, 948;  Crudele v. Price, 218 AD3d 539, 540).

Yosef's remaining contentions are either improperly raised for the first time on appeal or without merit.

BARROS, J.P., GENOVESI, TAYLOR and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court