of the State of New York for the 2nd, 11th & 13th Judicial Districts

MICHAEL L. PESCE, P.J.

THOMAS P. ALIOTTA

BERNICE D. SIEGAL, JJ.

DECISION & ORDER ON MOTION

Appeal from an order of the Civil Court of the City of New York, Kings County, entered November 21, 2017, which was determined by decision and order of this court dated December 6, 2019. Counsel for the respective parties and Damin J. Toell, Esq. were directed, by that decision and order, to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against appellant's counsel and Damin J. Toell, Esq. pursuant to 22 NYCRR 130-1.1 (c) as this court may deem appropriate.

Upon the order to show cause contained in the decision and order dated December 6, 2019, and upon the papers filed by appellant, respondent, and Damin J. Toell, Esq. in response thereto, it is

ORDERED that within 20 days after service of a copy of this decision and order upon it, The Rybak Firm, PLLC, counsel for 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 upon it, Damin J. Toell, Esq., is directed to pay a sanction in the sum of $250 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 the Clerk of the Civil Court of the City of New York, Kings County, shall enter judgment accordingly (see 22 NYCRR 130-1.2); and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this decision and order upon counsel for the parties and Damin J. Toell, Esq. by regular mail; and it is further,

ORDERED that within 10 days after payment of the sanction, The Rybak Firm, PLLC, shall file proof of payment with this court; and it is further,

ORDERED that within 10 days after payment of the sanction, Damin J. Toell, Esq., shall file proof of payment with this court.

By decision and order entered December 6, 2019, this court affirmed the order of the Civil Court which granted the motion by respondent American Independent Ins. Co. (AIIC) to dismiss the complaint pursuant to CPLR 3211 (a) (8). This court further held:

"We conclude that sanctions may be warranted for the conduct of The Rybak Firm, PLLC and Damin J. Toell, Esq., as their conduct appears to be frivolous (see Flushing Expo, Inc. v New World Mall, LLC, 116 AD3d 826 [2014]; Ram v Torto, 111 AD3d 814 [2013]). As relevant here, frivolous conduct includes the assertion of arguments that are completely without merit in law and [which] cannot be supported by a reasonable argument for an extension, modification or reversal of existing law' (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [c] [1]). Here, although the order appealed from expressly stated that plaintiff's arguments and the evidence' upon which plaintiff relied had previously been considered and rejected by this court and that plaintiff's remaining arguments were either contrary to a prior decision by the Appellate Division, Second Department, or predicated upon speculative factual arguments,' plaintiff's appellate brief does not appear to mention, let alone address, the prior decisions of this court or of the Appellate Division which may have rendered plaintiff's appellate arguments frivolous."

In response, Oleg Rybak, Esq., a member of the Rybak Firm, LLC (Rybak Firm) asserted that "a court must be careful not to confuse legal arguments that may appear at first blush to be frivolous with good faith efforts to modify existing law" (Borstein v Henneberry, 132 AD3d 447, 451 [2015]). Toell asserted that "your affirmant believed it to be understood that neither this Court nor the Appellate Division had previously considered the specific factual issues (and the resultant legal issues) raised in Plaintiff's brief." Here, although the Civil Court issued a six page typewritten order which expressly stated that plaintiff's arguments and the "evidence" upon which plaintiff relied had previously been considered and rejected by this court and that plaintiff's remaining arguments were either contrary to a prior decision by the Appellate Division, Second Department, or predicated upon "speculative factual arguments," the appellate brief submitted by Toell and the Rybak Firm did not cite or mention the cases cited by the Civil Court, let alone try to argue that either the Civil Court was wrong to rely upon said cases or that this court's decisions in prior cases were incorrect. Contrary to the assertions by Toell and the Rybak Firm this conduct did constitute a good faith attempt to modify existing law.

In view of the foregoing, we find that this appeal is frivolous with the meaning of 22 NYCRR 130-1.1 (c). Accordingly, we determine that sanctions in the amounts set forth above are warranted.

PESCE, P.J., taking no part.

ENTER:

Paul Kenny

Chief Clerk