John Hollings, Inc. v Nick & Duke, LLC

Motion No: M-2199

Slip Opinion No: 2011 NY Slip Op 90384(U)

Decided on November 22, 2011

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.

November 22, 2011

John Hollings, Inc. v Nick and Duke, LLC

Plaintiff's motion (M-2199) denied, with $100 costs payable to defendants-respondents. Defendants' cross motion

(M-2388) granted only to the extent that, pursuant to 22 NYCRR Part 30, sanctions are imposed on plaintiff-appellant and its attorney, Peter J. Calderon, Esq., each in the amount of $2,500, to be deposited with the Lawyers' Fund for Client Protection

(22 NYCRR 130-1.3), with $100 costs payable to defendants-respondents. The Clerk of the Supreme Court, New York County,

directed to entered judgment accordingly. The cross motion

otherwise denied. The cross motion, to the extent it seeks sanctions pursuant to 22 NYCRR Part 130 (M-2388), granted to

the extent indicated based on the finding of Supreme Court, New York County, affirmed by this Court in deciding the appeal, that plaintiff's conduct in commencing this action, barred as a matter of law by a prior adjudication against plaintiff in a summary holdover proceeding, was frivolous within the meaning of 22

NYCRR 130-1.1. Given that the commencement of the action was frivolous, it was similarly frivolous for plaintiff, with the

aid of its attorney, to prosecute the appeal from the dismissal of the complaint and, after the appeal was decided, to move for reargument or renewal of the appeal or, alternatively, for leave to appeal to the Court of Appeal. We further note that the scurrilous and ad hominem attacks on opposing counsel in plaintiff's motion papers are also frivolous within the meaning of 22 NYCRR 130-1.1. Accordingly, we award defendants-respondents statutory costs on both the motion (M-2199) and the cross motion (M-2388), and also impose a sanction of $2,500 each on plaintiff-appellant and its attorney, Peter J. Calderon, Esq. (see, 22 NYCRR 130-1.1[a]; 22 NYCRR 130-1.2), to be deposited, as indicated.

Before: Andrias, J.P., Friedman, Catterson, Moskowitz, Román, JJ.

Motion Nos. M-2199, M-2388