Appellate Division: Second Judicial Department

M193932

E/sl

PETER B. SKELOS, J.P.

L. PRISCILLA HALL

SANDRA L. SGROI

SYLVIA O. HINDS-RADIX, JJ.

2013-10289 Maria Curet, appellant, v DeKalb Realty, LLC, respondent. (Index No. 8622/09)

DECISION & ORDER ON MOTION

Appeal by Maria Curet from an order of the Supreme Court, Kings County, dated October 1, 2012, which was determined by decision and order of this Court dated August 16, 2013. Pursuant to an order to show cause contained in the decision and order of this Court dated April 15, 2015, as amended April 20, 2015, 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, including appellate counsel fees, against the appellant's counsel pursuant to 22 NYCRR 130-1.1(c) as this Court may deem appropriate.

Now, upon the Court's own motion and upon the papers filed in response to the order to show cause contained in the decision and order dated April 15, 2015, as amended April 20, 2015, it is

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Ginarte O'Dwyer Gonzalez Gallardo & Winograd LLP, counsel for the appellant, is directed to pay a sanction in the sum of $500 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 20 days after service of a copy of this decision and order on motion upon it, Ginarte O'Dwyer Gonzalez Gallardo & Winograd LLP, counsel for the appellant, is directed to pay a sanction in the sum of $4,000 as a reasonable attorney's fee for the respondent (see 22 NYCRR 130-1.1[a]), and shall pay that sum to the attorney for the respondent; and it is further,

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

ORDERED that the Clerk of this Court, or her 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 sanctions, Ginarte O'Dwyer Gonzalez Gallardo & Winograd LLP, shall file proof of payment with this Court.

The Supreme Court awarded an attorney's fee in favor of the respondent and against the appellant on the ground that the appellant's arguments in opposition to a motion made by the respondent were completely without merit in law and could not be supported by a reasonable argument for an extension, modification or reversal of existing law. Subsequently, the Supreme Court denied the appellant's motion pursuant to CPLR 5519, in effect, to stay enforcement of so much of the order as awarded the respondent an attorney's fee. On appeal, the appellant's counsel again advanced the same arguments. This Court affirmed, and directed the parties to show cause, inter alia, why sanctions should not be imposed against the appellant's counsel.

The arguments raised by the appellant's counsel on appeal were "completely without merit in law and [could not] be supported by a reasonable argument for an extension, modification or reversal of existing law" (22 NYCRR 130-1.1[c]). Moreover, the appellant's counsel created unnecessary litigation by repeatedly raising these frivolous arguments both before the Supreme Court and on this appeal, (see Cardinal Holdings, Ltd. v Indotronix Intl. Corp., 73 AD3d 960, 963; Tri-State Consumer, Inc. v Mintz & Gold, LLP, 45 AD3d 575, 576-577). Accordingly, we determine that sanctions in the amounts set forth above are warranted.

SKELOS, J.P., HALL, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court