Appellate Division: Second Judicial Department

M261635

U/mm

ALAN D. SCHEINKMAN, P.J.

CHERYL E. CHAMBERS

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2015-05517 Lawrence A. Obstfeld, et al., appellants, v Thermo Niton Analyzers, LLC, et al., respondents. (Index No. 500152/09)

DECISION & ORDER ON MOTION

Appeal from a judgment of the Supreme Court, Kings County, dated May 21, 2015. In a decision and order of this Court dated January 30, 2019, which determined the appeal, the parties were directed to show cause why an order should or should not be made and entered imposing sanctions and/or costs, if any, including appellate attorney's fees, against the appellants pursuant to 22 NYCRR 130-1.1(c) as this Court may deem appropriate, on the ground that the appellants appear to have raised arguments which were completely without merit in law and could not be supported by a reasonable argument for an extension, modification or reversal of existing law.

Now, upon the order to show cause contained in the decision and order of this Court dated January 30, 2019, and the papers filed in response thereto, it is

ORDERED that the appellants are directed to pay costs to the respondents in the sums of $25,000 as reasonable attorney's fees and $2,576.18 for actual expenses reasonably incurred (see 22 NYCRR 130-1.1[a]); the appellants shall pay the total sum of $27,576.18 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 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 sanction the appellants shall file proof of payment with the Clerk of this Court.

The plaintiffs commenced this action against Thermo Niton Analyzers, LLC, and Thermo Fisher Scientific, Inc. (hereinafter together the defendants), by filing a summons with notice dated June 9, 2009. In a complaint dated November 13, 2009, the plaintiffs asserted four causes of action.

The defendants moved for summary judgment, inter alia, dismissing the third and fourth causes of action. In an order dated April 9, 2012, the Supreme Court, among other things, denied those branches of the defendants' motion. The defendants appealed from that order. On appeal, this Court reversed the order dated April 9, 2012, insofar as appealed from, and granted those branches of the defendants' motion which were for summary judgment dismissing the third and fourth causes of action (see Obstfeld v Thermo Niton Analyzers, LLC, 112 AD3d 895, 896).

On February 2, 2015, a nonjury trial was held on the remaining two causes of action. In a subsequent decision dated May 4, 2015, the Supreme Court determined that the first and second causes of action must be dismissed. The court thereafter issued a judgment dated May 21, 2015, in favor of the defendants and against the plaintiffs, in effect, dismissing the complaint.

The plaintiffs appealed from that judgment. On appeal, the plaintiffs contended, inter alia, that the they were entitled to summary judgment on the third and fourth causes of action and, alternatively, that they should have been permitted to present proof relevant to the third and fourth causes of action at the trial (see Obstfeld v Thermo Niton Analyzers, LLC, 168 AD3d 1080, 1085).

In light of this Court's previous determination on the prior appeal awarding summary judgment dismissing the third and fourth causes of action (see Obstfeld v Thermo Niton Analyzers, LLC, 112 AD3d at 896), the plaintiffs' arguments with respect to those causes of action on the subsequent appeal were frivolous in that they 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][1]). In light of these frivolous arguments, among others, and based on the papers submitted in response to the order to show cause, the imposition of reasonable attorney's fees and actual expenses reasonably incurred against the appellants is warranted pursuant to 22 NYCRR 130-1.1(c), in the amounts indicated.

SCHEINKMAN, P.J., CHAMBERS, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court