IN RE: Deborah KOPALD (2026)

DECISION & ORDER

In two related proceedings pursuant to CPLR article 78, inter alia, to review, respectively, determinations of the respondent Town of Highlands New York Zoning Board of Appeals dated August 19, 2020, and September 16, 2020, which, after a hearing, upheld the issuance by the Town of Highlands New York of two building permits and of a certificate of occupancy, respectively, to the respondents David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner), the petitioner appeals from (1) an order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated July 12, 2021, and (2) a money judgment of the same court dated July 26, 2021.  The order granted the motion of the respondents David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) for an award of costs and attorneys' fees to the extent of awarding those respondents attorneys' fees in the sum of $15,000 and imposing a monetary sanction upon the petitioner in the sum of $10,000 to be deposited with the Clerk of the Supreme Court, Orange County, for transmittal to the Commissioner of Taxation and Finance.  The money judgment, upon an order and judgment (one paper) of the same court dated March 18, 2021, among other things, granting that branch of the motion of the respondents David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) which was pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the petitioner and for an award of costs, including attorneys fees, and upon the order dated July 12, 2021, is in favor of the respondents David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) and against the petitioner in the sum of $15,000, representing an award of attorneys' fees, and directing the petitioner to deposit the sum of $10,000 with the Clerk of the Supreme Court, Orange County, to be transmitted to the Commissioner of Taxation and Finance.

ORDERED that the appeal from the order is dismissed, as the order was superseded by the money judgment;  and it is further,

ORDERED that the money judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner).

In these two related proceedings pursuant to CPLR article 78, among other things, the petitioner sought to review, respectively, determinations of the respondent Town of Highlands New York Zoning Board of Appeals dated August 19, 2020, and September 16, 2020, which, after a hearing, upheld the issuance by the Town of Highlands New York of two building permits and of a certificate of occupancy, respectively, to the respondents David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) (hereinafter collectively the Tonnesons), who are adjacent landowners to the petitioner's property, for the purpose of constructing a modular home on the Tonnesons' property.  In a prior order and judgment dated March 18, 2021 (hereinafter the March 2021 order and judgment), which is the subject of a related appeal (see Matter of Kopald v Town of Highlands New York Zoning Bd. of Appeals, ––– AD3d –––– [Appellate Division Docket No. 2021–02778;  decided herewith] ), the Supreme Court, inter alia, granted that branch of the Tonnesons' motion which was pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the petitioner and for an award of costs, including attorneys' fees, upon its finding that the conduct of the petitioner in these proceedings with respect to the Tonnesons was abusive and frivolous within the meaning of 22 NYCRR 130–1.1. The court directed the parties to provide written submissions regarding the issue of the amount of an award of attorneys' fees, noting that an award of attorneys' fees would be assessed only for fees incurred as a result of the petitioner's frivolous conduct.

In response to the Supreme Court's directive, the Tonnesons moved for an award of costs and attorneys' fees in the sum of $60,639.50.  In an order dated July 12, 2021 (hereinafter the July 2021 order), the court granted the Tonnesons' motion to the extent of awarding them attorneys' fees in the sum of $15,000 and imposing a monetary sanction upon the petitioner in the sum of $10,000 to be deposited with the clerk of the court for transmittal to the Commissioner of Taxation and Finance (hereinafter the Commissioner).  On July 26, 2021, the court, upon the March 2021 order and judgment, and upon the July 2021 order, issued a money judgment in favor of the Tonnesons and against the petitioner in the sum of $15,000, representing an award of attorneys' fees, and directing the petitioner to deposit $10,000 with the clerk of the court for transmittal to the Commissioner.  The petitioner appeals.

22 NYCRR 130–1.1(a) provides for “reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct.”  The amount of costs or sanctions a court determines to impose is generally entrusted to the court's sound discretion (see Board of Mgrs. of Foundry at Washington Park Condo. v Foundry Dev. Co., Inc., 142 AD3d 1124, 1125).  A court may also award attorneys' fees incurred in making the fee application itself (see Schiffer v. Schiffer, 55 AD3d 714, 715–716).

Here, contrary to the petitioner's contention, the failure to submit a retainer agreement or letter of engagement (see 22 NYCRR 1215.1) was not fatal to the Tonnesons' motion for an award of costs and attorneys' fees.  “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem.  Co. v. JKH Realty Group, LLC, 127 AD3d 1035, 1036).  Here, the attorney representing the Tonnesons in these proceedings provided an affidavit detailing his hourly rate and billing practices, along with time sheets showing the hours actually billed to the Tonnesons.  The Supreme Court sufficiently explained “the reasons why the court found the amount awarded or imposed to be appropriate” (22 NYCRR 130–1.2).  Thus, the court providently exercised its discretion in awarding the Tonnesons attorneys' fees in the sum of $15,000.

Contrary to the petitioner's contention, the prior proceedings gave her sufficient notice that a sanction might be imposed upon her in addition to an award of attorneys' fees (see 22 NYCRR 130–1.1[a];  130–1.2).  Under the circumstances, the Supreme Court providently exercised its discretion in imposing a monetary sanction upon the petitioner in the sum of $10,000 for frivolous conduct (see Private Capital Group LLC v Connor, 242 AD3d 1236).

BARROS, J.P., WAN, MCCORMACK and HOM, JJ., concur.