Appellate Division: Second Judicial Department

M54476

S/sl

ANITA R. FLORIO, J.P.

MARK C. DILLON

EDWARD D. CARNI

WILLIAM E. McCARTHY, JJ.

2006-02804 Joseph Mascia, et al., plaintiffs-appellants, v Walter Maresco, respondent; Coalition of Landlords, Homeowners & Merchants, Inc., nonparty-appellant. (Index No. 27237-04)

DECISION & ORDER ON MOTION

Appeal by the plaintiffs and the nonparty, Coalition of Landlords, Homeowners & Merchants, Inc., from a judgment of the Supreme Court, Suffolk County, entered February 7, 2006, which was determined by decision and order of this court dated April 3, 2007. The decision and order of this court directed counsel for the parties to the appeal to show cause before this court why an order should or should not be made and entered imposing such sanctions and/or costs, if any, against the appellants and/or their counsel pursuant to 22 NYCRR 130-1.1(c) as this court may deem appropriate.

Upon the papers filed in response to the order to show cause thereto, it is

ORDERED that within 20 days after service of a copy of this decision and order on motion the nonparty-appellant Coalition of Landlords, Homeowners & Merchants, Inc., shall pay to Devitt Spellman Barrett, LLP, counsel for the respondent, the sum of $5,000, representing the reasonable costs and attorneys' fees of the respondent in defending the appeal (see 22 NYCRR 130-1.1[b]); and it is further,

ORDERED that the Clerk of the Supreme Court, Suffolk County, shall enter judgment accordingly (see 22 NYCRR 130-1.2); and it is further,

ORDERED that the Clerk of this court, or his designee, shall serve a copy of this decision and order on motion upon counsel for the parties by regular mail; and it is further,

ORDERED that within 10 days after payment of the above costs and attorneys' fees, counsel for the nonparty-appellant shall file proof of such payment with the Clerk of this court.

In the decision and order determining the appeals we stated that "[t]he contentions advanced by the plaintiffs here were completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law' (22 NYCRR 130-1.1[c][1]; see Kucker v Kaminsky & Rich, 7 AD3d 491, 492). Moreover, the plaintiffs' conduct in commencing this action and in continuing to advance their claims, appears to have been intended primarily to harass the defendant' (Kucker v Kaminsky & Rich, supra at 492)." In their papers in response to the order to show cause the appellants fail to provide any basis for this court to conclude that their actions in proceeding with the appeal were anything but frivolous. Accordingly, for the reasons set forth in the decision and order dated April 3, 2007 (see Mascia v Maresco, ______AD3d______ [2d Dept, Apr. 3, 2007]), and upon the papers filed in response to the order to show cause, an award of costs and attorneys' fees in the amount set forth above is appropriate.

FLORIO, J.P., DILLON, CARNI and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court