EDGECOMBE REVITALIZATION CORP v. Joshua Goldfein, Esq., et al., Appellants.

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

EDGECOMBE REVITALIZATION CORP., Petitioner-Respondent, v. Gail NEWBOLD, Respondent. Joshua Goldfein, Esq., et al., Appellants.

Decided: August 26, 1999

NARDELLI, J.P., WALLACH, TOM and ANDRIAS, JJ. Kenneth R. Fields, for Petitioner-Respondent. Victoria F. Maroulis, for Appellants.

Order of the Appellate Term of the Supreme Court, First Department, entered November 20, 1997, affirming an order of the Civil Court, New York County (Eardell Rashford, J.), entered October 9, 1996, which, in a summary proceeding for nonpayment of rent, imposed sanctions against respondent-tenant's attorneys pursuant to Part 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR part 130) in the form of reimbursement to the landlord for the reasonable attorneys' fees it incurred in defending an allegedly frivolous motion for contempt, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, and petitioner's motion for sanctions denied.

While counsel inappropriately attempted to use his pending contempt motion as a vehicle to obtain a rent settlement from the landlord, the Civil Court imposed costs on the ground that the contempt motion was improperly brought in the first instance.   Although counsel's excessive zeal and opportunism warrants criticism, the evidence does not, however, support the conclusion that the contempt motion was frivolous ab initio.   Since that was the sole basis upon which the Civil Court imposed costs on counsel and, since that conclusion is not supported by the record, we conclude that the imposition of costs on counsel was an improvident exercise of discretion.