Appellate Division: Second Judicial Department

M266835

E/mb

MARK C. DILLON, J.P.

CHERYL E. CHAMBERS

ROBERT J. MILLER

COLLEEN D. DUFFY, JJ.

2016-07975 Christine Patouhas, respondent, v Philip Patouhas, appellant. (Index No. 52354/16)

DECISION & ORDER ON MOTION

2017-04302

Christine Patouhas, respondent,

v Philip Patouhas, appellant.

(Index No. 52354/16)

Separate appeals from two orders of the Supreme Court, Westchester County, dated June 22, 2016, and March 9, 2017, respectively, which were determined by separate decisions and orders of this Court dated May 22, 2019. In each decision and order dated May 22, 2019, 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 counsel fees, against the appellant pursuant to 22 NYCRR 130-1.1(c). The appellant moves separately, in each appeal, for leave to reargue that appeal or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court that determined that appeal, and the respondent cross-moves separately, in each appeal, inter alia, pursuant to 22 NYCRR 130-1.1 to impose sanctions upon the appellant and for an award of counsel fees for making a frivolous motion.

Now, upon the orders to show cause and the papers filed in response thereto, and upon the papers filed in support of the motions and the cross motions, and the papers filed in relation thereto, it is

ORDERED that the motions for sanctions and/or costs are granted to the extent that the respondent is awarded $12,000 as reasonable appellate counsel fees, the appellant shall pay that sum to the respondent within 20 days after service upon the appellant of a copy of this decision and order on motion, and the motions are otherwise denied; and it is further,

ORDERED that the appellant's motions are denied, with $100 costs; and it is further,

ORDERED that the respondent's cross motions are granted to the extent that the respondent is awarded $3,000 as reasonable appellate counsel fees incurred in responding to the appellant's motions, the appellant shall pay that sum to the respondent within 20 days after service upon the appellant of a copy of this decision and order on motion (see 22 NYCRR 130-1.1), and the cross motions are otherwise denied; and it is further,

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

ORDERED that the Clerk of this Court, or her designee, shall serve copies of this decision and order on motion upon the parties, by regular mail; and it is further,

ORDERED that within 10 days after payment of the costs and the reasonable appellate counsel fees to the respondent, the appellant shall file proof of such payment with the Clerk of this Court.

By decision and order dated May 22, 2019, this Court affirmed an order of the Supreme Court, Westchester County, dated June 22, 2016, which denied the appellant's motion to dismiss the action due to the respondent's failure to serve the complaint in accordance with the time constraints contained in CPLR 3012(b), holding that the short delay was reasonable and the verified complaint demonstrated a potentially meritorious cause of action. By decision and order dated May 22, 2019, this Court affirmed an order of the Supreme Court, Westchester County, dated March 9, 2017, which denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(2) to dismiss the action, holding that the issue of whether the respondent established that the parties' marriage had irretrievably broken down concerned the merits of the divorce action and not the Supreme Court's competence to adjudicate the divorce action. In both decisions and orders dated May 22, 2019, this Court stated that the appeals might be frivolous as the appellant's arguments appeared to be "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]).

Based upon the papers submitted to the Court, an award of costs and reasonable appellate counsel fees is warranted pursuant to 22 NYCRR 130-1.1(c) in the amounts indicated. Moreover, by advancing those same arguments in support of his motions, inter alia, for leave to reargue, an award of additional counsel fees pursuant to 22 NYCRR 130-1.1 is warranted in the amount indicated.

DILLON, J.P., CHAMBERS, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court