The motion of defendants Patrick McGrave, by his administrator and Julia McGrave for summary judgment, CPLR §3212 and for costs 22 NYCRR 130-1.1 and CPLR §8303-a is granted. The Court has previously ordered summary judgment against Sean McGrave. A hearing is necessary to assess the quantum of costs to be awarded to the moving defendants in accordance with this decision and order.

Subject to the approval of the Justice there presiding and provided a Note of Issue has been filed at least 10 days prior thereto, this matter is referred to the Calendar Control Part (CCP) for a hearing on May 23, 2007, at 9:30 A.M., to assess damages in accordance with this decision.

A copy of this order shall be served on the Calendar Clerk and accompany the Note of Issue when filed. The failure to file a Note of Issue or appear as directed may be deemed an abandonment of the claims giving rise to the hearing.

The directive with respect the hearing is subject to the right of the Justice presiding in CCP to refer the matter to a Justice, Judicial Hearing Officer or a Court Attorney/Referee as he or she deems appropriate.

Defendant Sean McGrave, then aged 32, shot and killed plaintiff's decedent Thyl [*2][*3]Eggink while they were watching a football game with friends at a home in the Town of Bethel, New York, a crime for which he pleaded guilty in January 2005 to Criminally Negligent Homicide a Class E Felony. This action against Sean and his grandparents Patrick McGrave (since deceased) and Julia McGrave, the owners of the premises ensued.

Despite allegations to the contrary, discovery has yielded no evidence to connect the gun, (or even knowledge of its existence) employed in the crime to the moving defendants or any hint of knowledge or notice that Sean might commit the crime and there is no evidence that the movants were at the premises when the crime occurred. Moreover, Sean has not implicated his grandparents in any way with the event.

Julia McGrave has testified that neither she nor her husband owned a gun or ever knew that there was a gun at the house.

It is well settled that landowners have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control, D'Amico v. Christie, 71 NY2d 76 (1987). Landowner's who are not present at the time of the harmful conduct by others and who have neither notice of nor control over such conduct are under no duty to protect others from its consequences. Dynas v. Nagowski, 307 AD2d 144, 146 (4th Dept. 2003).

An owner who is aware of the likelihood of conduct by third parties that would endanger visitors, is obligated to take reasonable precautions to minimize the risk of criminal acts and to make the premises safe, Alonso v. Branchinelli, 277 AD2d 408 (2d Dept. 2000); Del Bourgo v. 138 Sidelines Corp., 208 AD2d 795 (2d Dept. 1994). Applying these principles to the facts reveals that there is no merit to the claims against the moving property owners and that summary judgment dismissing the action against them is appropriate.

Plaintiff does not dispute entitlement to summary judgment by movants but does argue that the application for costs should be denied because it was not readily apparent that the movants had no legal or factual connection to the criminal event.

CPLR §8303-a provides in substance that if a claim such as this is commenced or continued and is found to be frivolous, the Court shall award costs and reasonable attorneys fees up to $10,000 to the successful party. In order to find the action to be frivolous the court must find that there was no reasonable basis in law or fact for the action or its continuance that it could not be supported by a good faith argument for a change of existing law CPLR §8303-a (c) (ii).

The rules of the Chief Administrator, 22 NYCRR 130-1.1 provide that an award of costs maybe made for frivolous conduct §130-1.1(c) (1), lack of merit in law or facts. Yan v. Klein, 35 AD3d 729 (2d Dept. 2006) and there is a duty upon the attorney to make an analysis of the case in the context of the entire record and make a determination of merit independent of the wishes of the client, Heilbut v. Heilbut, 18 AD3d 1 (1st Dept. 2005).

Although at times an evidentiary hearing is required to make a determination of whether costs should be imposed, Walker v. Weinstock, 213 AD2d 631 (2d Dept. 1995), that requirement is not necessary here because the request for costs was a separate and distinct [*4][*5]prayer for relief on this motion, plaintiff has been afforded and has taken the opportunity to submit reasons for its conduct, the parties have submitted documentary evidence, there are no factual disputes and plaintiff has not requested a hearing. Hence, in this instance it is not necessary to hold an evidentiary hearing on the issue of whether plaintiff's conduct was frivolous, Gordon v. Marrone, 202 AD2d 104 (2d Dept. 1994).

The Court finds that there came a time during this litigation, prior to the making of this motion when a cursory analysis of the well settled legal principles and rudimentary facts should have made apparent to plaintiff's counsel that there was no merit to the claims against the movants and thus the action should not have been continued. Mitchell v. Herald Company, 137 AD2d 213 (4th Dept. 1988).

To continue this action and to require defendants to make this motion was thus frivolous, within the meaning of the above statutes and regulations, thereby entitling defendants to costs.

Giving plaintiffs every benefit of the doubt the Court finds that the deposition testimony of defendant Julia McGrave on January 12, 2007, coupled with the failure to unearth any other facts implicating Julia and Patrick McGrave establishes that date as the date when plaintiff should have discontinued this action as to the movants and that the movants are entitled to statutory costs, CPLR 8301(a), the reasonable and necessary expenses of this motion CPLR §8301(b) and all costs, expenses and reasonable attorneys fees (such fee not to exceed $10,000) incurred since the date of the deposition of Julia McGrave, CPLR §8303-a, 22NYCRR §130-1 et seq.

This shall constitute the Decision and Order of this Court

E N T E R

DATED: April 24, 2007

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice

TO: