Appellate Division: Second Judicial Department

M226103

S/sl

MARK C. DILLON, J.P.

SHERI S. ROMAN

SYLVIA O. HINDS-RADIX

COLLEEN D. DUFFY, JJ.

2014-08943 Maureen Webb, appellant-respondent, v Greater New York Automobile Dealers Association, Inc., respondent-appellant. (Index No. 8685/13)

DECISION & ORDER ON MOTION

Appeal by the plaintiff and cross appeal by the defendant from an order of the Supreme Court, Queens County, entered July 21, 2014, which were determined by decision and order of this Court dated November 30, 2016. Upon determining that the plaintiff had engaged in frivolous conduct within the meaning of 22 NYCRR 130-1.1 in connection with her appeal, the decision and order of this Court directed the defendant to file an original and four copies of an affirmation or affidavit as to the amounts of reasonable attorney's fees and expenses it incurred in defending against the plaintiff's appeal.

Upon the papers filed by the defendant and the plaintiff in response to the decision and order of this Court dated November 30, 2016, it is

ORDERED that within 20 days after service of a copy of this decision and order on motion upon her, Claire Pare, counsel for the plaintiff shall pay to Putney, Twombly, Hall & Hirson, LLP, counsel for the defendant, the sum of $8,000, representing the reasonable attorney's fees of the defendant in defending the appeal (see 22 NYCRR 130-1.1[b]); and it is further,

ORDERED that the Clerk of the Supreme Court, Queens 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 above attorneys' fees, counsel for the plaintiff shall file proof of such payment with the Clerk of this Court.

In the decision and order determining the appeals this Court stated "we agree with the defendant that the plaintiff has engaged in frivolous conduct within the meaning of that rule [22 NYCRR 130-1.1] in continuing to prosecute this appeal after she amended her complaint in the 2012 action to assert the identical set of claims contained in her amended complaint in this action. As the Supreme Court's dismissal of the amended complaint in the instant action was based on the doctrine of res judicata, which has no application in the 2012 action (see Webb v Greater N.Y. Auto. Dealers Assn., Inc., ___ AD3d ___ [Appellate Division Docket No. 2015-06226; decided herewith]), there was no basis in law or fact for the plaintiff to continue to pursue the instant appeal (see 22 NYCRR 130-1.1[c])." In the papers in response to the decision and order of this Court dated November 30, 2016, the plaintiff's counsel fails to provide any basis for this court to conclude that counsel's actions in proceeding with the appeal were anything but frivolous. Accordingly, an award of attorneys' fees in the amount set forth above is appropriate.

DILLON, J.P., ROMAN, HINDS-RADIX and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court