Appellate Division: Second Judicial Department

M115635

E/sl

MARK C. DILLON, J.P.

RUTH C. BALKIN

ARIEL E. BELEN

PLUMMER E. LOTT, JJ.

2009-02377 Craig Martin, plaintiff-appellant, v George Burns, respondent; Arthur Morrison, nonparty-appellant. (Index No. 08-16282)

DECISION & ORDER ON MOTION

Appeal by Arthur Morrison from an order and judgment (one paper) of the Supreme Court, Westchester County, entered February 18, 2009, which was determined by a decision and order of this Court dated October 5, 2010, as amended January 6, 2011. In the decision and order, as amended, this Court directed counsel for the defendant and the nonparty-appellant, former attorney for the plaintiff-appellant, to show cause why an order should not be made and entered imposing such sanctions and/or costs, if any, against the nonparty-appellant pursuant to 22 NYCRR 130-1.1, as this Court deemed appropriate.

Upon the Court's own motion and upon the papers filed in response to the order to show cause, it is

ORDERED that within 20 days after service upon him of a copy of this order, Arthur Morrison is directed to pay a sanction in the sum of $750 to the Lawyers Fund for Client Protection (see 22 NYCRR 130-1.1[b]; 130-1.3); and it is further,

ORDERED that the Clerk of the Supreme Court, Westchester 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; and it is further,

ORDERED that within 10 days after payment of the sanction, Arthur Morrison shall file proof of such payment with the Clerk of this Court.

The decision and order of this Court dated October 5, 2010, as amended, stated:

"The Supreme Court also providently exercised its discretion in granting that branch of the defendant's motion which was to impose a sanction upon the former attorney for the plaintiff pursuant to 22 NYCRR 130-1.1 for frivolous conduct. In addition to failing to recognize and adhere to proper statutory procedure, the former attorney for the plaintiff effectively ignored the defendant's request to cancel a compliance conference which had been rendered academic by the court's December 5, 2008, order, inter alia, granting that branch of the defendant's motion which was for summary judgment dismissing the complaint. Moreover, the former attorney for the plaintiff failed to appear at that conference, and he failed or refused to withdraw various motions which were likewise rendered academic by the December 5, 2008, order (see Caplan v Tofel, 65 AD3d 1180, 1181-1182). Thus, the record supports the Supreme Court's finding that the former attorney for the plaintiff engaged in frivolous conduct.

"The appeal by the former attorney for the plaintiff is only from so much of order and judgment as granted that branch of the defendant's motion which was to impose a sanction upon him. However, the brief of the former attorney for the plaintiff consists almost entirely of a reargument of the merits of a motion and cross motion that the Supreme Court disposed of in the order dated December 5, 2008, to the near exclusion of discussion as to whether the Supreme Court providently exercised its discretion in imposing a sanction upon him based on the conduct described in the preceding paragraph. As this would appear to constitute frivolous conduct, we direct counsel for the defendant and for the nonparty former attorney for the plaintiff to show cause why additional sanctions should or should not be imposed (see Caplan v Tofel, 65 AD3d at 1181-1182; Good Old Days Tavern v Zwirn, 271 AD2d 270; Rules Governing Judicial Conduct [22 NYCRR] § 130-1.1[c])."

In light of the limited nature of the appeal, the issues raised in the brief submitted by Arthur Morrison were 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, we determine that a sanction in the amount set forth above is appropriate.

In papers filed in response to the order to show cause, counsel for the respondent requests an award of counsel fees incurred in connection with the appeal and attendant motion practice. However, counsel for the respondent failed to provide any documentation or information to support an award of counsel fees. Accordingly, no award of counsel fees can be made.

DILLON, J.P., BALKIN, BELEN and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court