Appellate Division: Second Judicial Department

M95593

S/sl

WILLIAM F. MASTRO, J.P.

ANITA R. FLORIO

RANDALL T. ENG

JOHN M. LEVENTHAL, JJ.

2008-02605 David R. Caplan, appellant-respondent, v Lawrence E. Tofel, et al., respondents- appellants. (Index No. 8694/07)

DECISION & ORDER ON MOTION

The plaintiff having appealed to this Court from an order of the Supreme Court, Dutchess County, dated February 22, 2008, and this Court having affirmed the order by decision and order dated September 29, 2009, the parties to the appeal were directed to show cause why an order should or should not be made and entered imposing such sanctions, and/or costs, if any, including appellate counsel fees, against the plaintiff and/or the plaintiff's counsel, pursuant to 22 NYCRR 130-1.1(c) as this Court may deem appropriate. Application by the defendant for attorney's fees on the appeal.

Now, upon the Court's own motion and upon the papers filed in response to the order to show cause, and in connection with the application, it is

ORDERED that the application is denied; and it is further,

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Corbally, Gartland and Rappleyea, LLP, counsel for the plaintiff, is directed to pay a sanction in the sum of $2000 to the Lawyers' Fund for Client Protection of the State of New York (see 22 NYCRR 130-1.1[b]; 130-1.3); and it is further,

ORDERED that the David R. Caplan, is directed to pay a sanction in the sum of $2000 and shall deposit the sum of $2000 with the Clerk of this court for transmittal to the Commissioner of Taxation and Finance (see 22 NYCRR 130-1.3), within 20 days after service of a copy of this decision and order on motion upon his counsel; and it is further,

ORDERED that the Clerk of the Supreme Court, Dutchess 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.

In affirming the order on appeal we noted that:

"The Supreme Court also providently exercised its discretion in granting that branch of the defendants' motion which was to impose a sanction upon the plaintiff pursuant to 22 NYCRR 130-1.1 for frivolous conduct. Contrary to the plaintiff's contention, the record supports the Supreme Court's finding that he engaged in frivolous conduct by instituting this action for the primary purpose of delaying enforcement of the defendants' judgment (see Matter of Minister, Elders & Deacons of Ref. Pro. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411). However, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was to impose a sanction upon the plaintiff's counsel, based upon its finding that counsel was not fully aware of the history of prior litigation between the parties."

The appellant's continuation of the same patently meritless arguments on appeal constitutes frivolous conduct as the appeal was taken simply to delay enforcement of the defendants' judgment (see 22 NYCRR 130-1.1[c][2]). Once the plaintiff's counsel was aware of the history of the prior litigation between the parties there was no basis to justify this appeal, as the appeal was completely without merit in law and could not be supported by a reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1[c][1]).

Accordingly, sanctions in the amounts set forth above are warranted.

MASTRO, J.P., FLORIO, ENG and LEVENTHAL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court