| Citibank, N.A. v Thomas |
| 2008 NY Slip Op 51474(U) [20 Misc 3d 134(A)] |
| Decided on April 29, 2008 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A.
Mayerson, J.), entered March 5, 2007. The order, insofar as appealed from as limited by the brief,
denied the branch of defendant's motion seeking the imposition of sanctions.
Order, insofar as appealed from, affirmed without costs.
After plaintiff obtained a default judgment against defendant in the instant action, defendant moved to vacate the default judgment and sought the imposition of sanctions against plaintiff, pursuant to Rules of the Chief Administrator (22 NYCRR) part 130. The court below granted the motion to vacate but declined to impose sanctions. The instant appeal by defendant ensued.
The question of whether sanctions should be imposed against a party or attorney is addressed
to the sound discretion of the court (see Kamen v Diaz-Kamen, 40 AD3d
937 [2007]; Wagner v Goldberg, 293 AD2d 527 [2005]). While the conduct of
plaintiff's counsel in failing to respond to defense counsel's correspondence may have been
unprofessional and discourteous, such conduct, under the circumstances presented, does not fall
within the definition of "frivolous conduct" such as to warrant the imposition of sanctions
(see Rules of Chief Administrator [22 NYCRR] § 130-1.1 [c]; see e.g. Matter of
Frank M. v Siobhan N., 268 AD2d 808 [2000]; see also Riccardo's Lounge Inc. v Maggio, 9 Misc 3d 1112[A],
2005 NY Slip Op 51509[U] [2005]; Matter of Schneider, 159 Misc 2d 741 [1993]).
Thus, the court below did not improvidently exercise its discretion in denying the branch of
defendant's motion which sought the imposition of sanctions against plaintiff.
We note in passing that, as professionals, attorneys are expected to act with the greatest
degree of courtesy and civility (see e.g. Code of Professional Responsibility EC 7-38).
Plaintiff's counsel's refusal to respond to defense counsel's repeated written
[*2]
requests for information, while not sanctionable under
the facts herein, falls short of this expectation.
Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 29, 2008