Appellate Division: Second Judicial Department

M106827

E/sl

PETER B. SKELOS, J.P.

FRED T. SANTUCCI

DANIEL D. ANGIOLILLO

CHERYL E. CHAMBERS, JJ.

2009-03067, 2009-06929, 2010-04516 Cardinal Holdings, Limited, appellant-respondent, v Indotronix International Corporation, et al., respondents-appellants. (Appeal No. 1) Cardinal Holdings, Limited, plaintiff, v Indotronix International Corporation, et al., respondents; John V. Fabiani, Jr., nonparty-appellant. (Appeal No. 2) Cardinal Holdings, Limited, appellant, v Indotronix International Corporation, et al., respondents. (Appeal No. 3) (Index No. 7219/08)

DECISION & ORDER ON MOTION

Appeal by the plaintiff from an order of the Supreme Court, Dutchess County, dated February 23, 2009, and a judgment of the same court entered July 15, 2009, cross appeal by the defendants from the order dated February 23, 2009, and appeal by John V. Fabiani, Jr., from an order of the same court dated June 22, 2009, which were determined by decision and order of this court dated May 18, 2010. By order to show cause contained in the decision and order dated May 18, 2010, counsel for the respective parties were directed to show cause why an order should or should not be made and entered imposing additional sanctions and/or costs, if any, against the plaintiff and/or its counsel pursuant to 22 NYCRR 130-1.1(c) as this court deemed appropriate.

Upon the order to show cause contained in the decision and order dated May 18, 2010, and the papers filed in response thereto, it is

ORDERED that within 20 days after service of a copy of this order upon it, John V. Fabiani, Jr., counsel for the plaintiff, is directed to pay a sanction in the sum of $1000 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 within 10 days after payment of the sanction, John V. Fabiani, Jr., shall file proof of payment with the Clerk of this court; and it is further,

ORDERED that the Cardinal Holdings, Limited, is directed to pay a sanction in the sum of $1000 and shall deposit the sum of $1000 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 order 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 order upon counsel for the parties by regular mail.

In affirming the order on appeal we noted that:

"The Supreme Court providently exercised its discretion in granting the defendants' motion for leave to renew that branch of their original motion which was for sanctions pursuant to 22 NYCRR 130-1.1(c). The defendants provided a reasonable justification for their failure to submit, on the original motion, affirmations for legal services rendered (see Heaven v McGowan, 40 AD3d 583; Gomez v Needham Capital Group, Inc., 7 AD3d 568, 569). Upon renewal, the Supreme Court also providently exercised its discretion in granting that branch of the defendants' motion which was to impose sanctions upon Cardinal and its counsel pursuant to 22 NYCRR 130-1.1(c) for frivolous conduct. The record supports the Supreme Court's finding that the commencement of this action by Cardinal and its counsel was frivolous and was undertaken primarily to harass the defendants ( see Kornblum v Kornblum, 34 AD3d 749, 751)."

The continuation of the same meritless arguments on appeal constitutes frivolous conduct, 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.

SKELOS, J.P., SANTUCCI, ANGIOLILLO and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court