Appellate Division: Second Judicial Department

M216859

S/sl

REINALDO E. RIVERA, J.P.

SANDRA L. SGROI

ROBERT J. MILLER

SYLVIA O. HINDS-RADIX, JJ.

2014-02674 Frank A. Acocella, et al., appellants, v Wells Fargo Bank, NA, defendant, Bank of New York Mellon as Trustee for CSMC Trust 2011-11, et al., respondents. (Index No. 53913/13)

DECISION & ORDER ON MOTION

Appeal by the plaintiffs from an order of the Supreme Court, Westchester County (Smith, J.), dated February 24, 2014, which was determined by decision and order of this Court dated May 4, 2016. By order to show cause contained in the decision and order dated May 4, 2016, counsel for the respective parties were directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against the plaintiffs and/or their counsel pursuant to 22 NYCRR 130-1.1(c) as this Court may deem appropriate. Motion by the respondents for costs and counsel fees.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the respondents' motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the appellants and their counsel, Murphy Law Group, are directed to pay a sanction to the respondents in the total sum of $6,089 as reasonable counsel fees and costs (see 22 NYCRR 130-1.1[a]); the appellants and their counsel, Murphy Law Group, shall each pay the sum of $3,044.50 (one-half the total sum awarded) to the respondents' attorney within 20 days after service of a copy of this decision and order on motion upon counsel for the appellants; and it is further,

ORDERED that the Clerk of the Supreme Court, King County, shall enter judgments 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 sanction the appellants and their counsel shall file proof of their respective payments with the Clerk of this Court.

By decision and order dated May 4, 2016, this Court affirmed an order of the Supreme Court, Westchester County, dated February 24, 2014, which granted the motion of the defendants Bank of New York Mellon as Trustee for CSMC Trust 2011-11 and Green Tree Servicing, LLC, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. This Court noted "that the plaintiffs continued to prosecute the instant appeal after this Court, by decision and order dated April 15, 2015, rejected identical claims in a separate action commenced by them (see Acocella v Bank of N.Y. Mellon, 127 AD3d 891). The conduct of the plaintiffs and their attorney in pursuing the instant appeal appears to be completely without merit in law or fact and unsupported by a reasonable argument for an extension, modification, or reversal of existing law, or undertaken primarily to delay or prolong the resolution of litigation or to harass or maliciously injure another (see 22 NYCRR 130-1.1[c]; Palmieri v Thomas, 29 AD3d 658, 659; Weinstock v Weinstock, 253 AD2d 873, 874). Accordingly, we directed counsel for the parties to submit affirmations or affidavits on the issue of the imposition of sanctions and/or costs against the plaintiffs and/or their counsel pursuant to 22 NYCRR 130-1.1(c)." Based on the papers submitted in response to the order to show cause and on the papers filed in support of the respondents' motion, the imposition of costs and counsel fees against the appellants and their counsel is warranted pursuant to 22 NYCRR 130-1.1(c) in the amount indicated.

RIVERA, J.P., SGROI, MILLER and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court