Dweck v Oppenheimer & Co., Inc. Reargument denied

Motion No: M-3473

Slip Opinion No: 2007 NYSlipOp 64093(U)

Decided on March 1, 2007

Appellate Division, First Department, Motion Decision

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This motion is uncorrected and is not subject to publication in the Official Reports.

March 1, 2007

Dweck v Oppenheimer & Co., Inc. Reargument denied; cross motion for costs and sanctions granted to the extent of finding plaintiff has engaged in frivolous conduct by bringing the motion and defendant is granted leave to move on notice for an award of costs and attorney's fees and for the imposition of sanctions under Rule 130-1.1.

(a) Plaintiff, an attorney who is the principal of his own law office, argues a point that was not the basis of our decision on appeal affirming dismissal of the complaint formation of contract. Our decision rested entirely upon the fact that plaintiff failed to demonstrate that he may have sustained damages as a result of defendants' conduct. Plaintiff makes no effort to establish, through record evidence or citation to legal authority, that he sustained damages. Thus, plaintiff, in effect, did not even attempt to demonstrate that we overlooked or misapprehended the facts or the law on his appeal. Moreover, the bench awarded costs on the appeal and found plaintiff's claims to be so baseless that leave to replead, which is generally granted (see e.g. Varo, Inc. v Alvis, PLC, 261 AD2d 262 [1999]) was deemed inappropriate.

Before: Tom, J.P., Friedman, Nardelli, Buckley, McGuire, JJ.

Motion Nos. M-3473, M-3704