Defendant, Superior Jamestown, has asked this Court to impose sanctions pursuant to Section 130-1.1 of the Rules of the Chief Administrator as a result of an action filed in State Supreme Court, Chautauqua County by attorney James E. Westman, Esq. on behalf of his client, Arnold Weiss, Esq. The lawsuit was filed for the purpose of recovering attorneys fees allegedly incurred by the plaintiff Arnold Weiss for services rendered to the defendant. The lawsuit was ultimately dismissed by the Court because of the failure of the plaintiff to file an Amended Complaint pursuant to the Court's Order. As part of its decision, the Court granted a reservation of rights to the defendant to seek its remedies pursuant to Section 130-1.1 of the Rules of the Chief Administrator.

In order for the defendant to prevail on this motion, it must show that the conduct of the plaintiff and/or his counsel was frivolous. §130-1.1 (a) Rules of Chief Administrator. Pursuant to that part, conduct is frivolous if:

1)It is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

2)It is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injury another; or

3)It assets material factual statements that are false. §130-1.1 (c) Rules of Chief Administrator.

Upon review of the submission of defendant's counsel, the Court finds that defendant has not sustained its burden of proving that the conduct of plaintiff or plaintiff's counsel was frivolous.

Therefore, upon defendant's Notice of Motion dated October 18, 2005, the affidavit of J. David Sampson, Esq. sworn to October 18, 2005 and the affidavit of Loren L. Bly, Esq. sworn to October 17, 2005 in support thereof; and upon the responding affirmation of Arnold Weiss, Esq. dated November 23, 2005 and the affidavit of James E. Westman, Esq. sworn to November 22, 2005 in opposition thereto; and due deliberation having been had thereon; it is

ORDERED, that the defendant's motion for costs and sanctions is, in all respects, denied.

DATED:November30, 2005 [*2]

____________________________

Hon. FREDERICK J. MARSHALL

Justice, Supreme Court