After a failed real estate transaction, this case proceeded through a lengthy period for discovery, alternative dispute resolution, and motion practice before finally a trial was commenced on September 29, 2025. On the morning of trial, the court denied defendants' counsel's informal request for an adjournment. Then, after exhibits were admitted into evidence but before the first witness was called, defendants' counsel informed the court that defendants had terminated his representation. Plaintiff now requests the court order defendants to reimburse costs associated with defendants' intentional delay of the litigation's resolution (see generally 22 [*2]NYCRR 130-1.1).

Defendants' election to terminate their counsel shortly after the trial commenced was a continuation of their efforts to delay the resolution of this matter and solidified that pattern for the court. This most recent change of counsel was not the first as defendants previously changed representation. After the action was commenced on September 22, 2022, a preliminary conference was held on April 25, 2023, setting a one-year discovery schedule. Concurrently, the case was referred to alternative dispute resolution. In November 2023, parties notified the court that they had failed to reach a resolution during mediation, and they jointly requested additional time for discovery. In January 2024, over a year after the case was commenced, defendants changed counsel. Depositions were then conducted and multiple adjournments of the note of issue deadline were granted by the court at parties' mutual request. Following depositions, on May 29, 2024, plaintiff served further discovery demands upon defendants. Defendants failed to respond, and, on July 23, 2024, the court referred the case to a Court Attorney Referee for the purpose of conducting a mediation session to resolve remaining discovery issues. Despite having reached an agreement during mediation regarding discovery, on September 20, 2024, plaintiff notified the court that defendants still had failed to provide the requested discovery. On October 7, 2024, the court held a discovery conference and defendants' counsel conceded discovery had not been fully provided. On November 27, 2024, plaintiff wrote to the court, memorializing that "[d]efendants' continuous delays and disregard of the Court's orders and the parties' mutual agreements throughout the case has cost the Plaintiff time and money, hindered the progress of this case toward trial and will prevent the filing of the Note of Issue, as ordered." On December 9, 2024, the court held another discovery conference and noted that defendants had still failed to turn over discovery related to their counterclaims despite requests dating back over a year and a half as well as multiple court orders. Based upon this pattern of delay, on December 10, 2024, the court issued a conditional preclusion order.

Plaintiff then filed the note of issue and the parties proceeded to dispositive motions and trial. On February 20, 2025, a pre-trial conference was held and the trial was scheduled for September 29, 2025. Subsequently, parties each filed dispositive motions. The court conferenced the case again on August 12, 2025, and, while possible later dates for trial were discussed, no formal request for an adjournment of trial was made, nor was one submitted at any other point prior to the day of trial. On August 15, 2025, approximately six weeks before the trial, the court advised the parties that the written determination of the motions would be forthcoming, but in light of the upcoming trial, informed counsel of the determination for each motion in advance of the formal issuance of the full decision and order. Prior to trial, the parties made multiple pre-trial motions that were addressed at a conference held on September 25, 2025. Particularly, the court allowed late identification of plaintiff's appraiser as an expert, noting the lack of surprise or prejudice considering the appraisal report's early disclosure and its subject being the heart of the matter in dispute, and allowed defendants to amend their answer to add failure to mitigate damages.

On the morning of the trial, the court conferenced the case with counsel. Despite the lengthy conference held the week prior in which the court ruled upon the motions in limine, Defendants' counsel requested an adjournment of the trial. The court denied defendants' request, explaining amongst other reasons that there was no viable basis to grant an adjournment and that the case needed to reach a conclusion. The court afforded counsel an opportunity to mark exhibits — something that was supposed to have already occurred — and then stipulated exhibits [*3]were admitted into evidence. Plaintiff's expert waited outside of the courtroom throughout this process. As plaintiff was ready to call the first witness, defendants' counsel requested a side bar during which he informed the court that he had been terminated by his clients and would again be requesting an adjournment of the trial.

It is well settled that "[a] court is vested with broad discretion to control its calendar" (SKR Design Group, Inc. v Avidon, 32 AD3d 697, 699 [1st Dept 2006]), and a determination whether to grant an adjournment for any purpose, particularly after the commencement of trial, rests "within the sound discretion of the trial court" (Matter of Anthony M., 63 NY2d 270, 283 [1984]; see Matter of Steven B., 6 NY3d 888, 889 [2006]). This discretion is particularly present in a case where an adjournment is requested due to change of counsel and "the attorney's withdrawal is caused by a voluntary act of the client" (Matter of Wiley v Musabyemariya, 118 AD3d 898, 899-900 [2d Dept 2014] [internal quotation marks and citations omitted], lv denied 24 NY3d 907 [2014]; see Graco Const. Corp. v Eves, 232 AD2d 370, 370-371 [2d Dept 1996]). Courts appropriately consider if dismissal of counsel lacks basis in the record, such as where there is a significant history of representation and there is no indication of a party's prior dissatisfaction with counsel or attempts to retain new counsel prior to the dismissal (see Woertler v Woertler, 110 AD2d 947, 948 [3d Dept 1985] [Holding the trial court had ample basis to consider defendant's dismissal of counsel as nothing but a delaying tactic and, therefore, properly denied the adjournment]; 105 NY Jur 2d Trial § 156 ["the trial court properly denies an adjournment based on a party's dismissal of counsel as a delaying tactic"]).

While adjourning the trial further delayed resolution of the case and plaintiff had a retained expert witness at the court waiting to testify, the court ultimately granted a strict adjournment, to November 10, 2025, to allow defendants time to retain new counsel. The court considered the public policy in favor of resolving cases on the merits — notably denial of an adjournment would have resulted in defendant 28 Hampton LLC defaulting as the corporation cannot proceed pro se with a non-attorney principal (see Matter of Pere v 1470-1488 U&R, 247 AD2d 477, 478 [2d Dept 1998] [Holding a corporation was in default as it did not appear by an attorney at the underlying hearings]). Further, the court noted plaintiff's oral motion for costs, which could address any potential prejudice to plaintiff for delay should the court ultimately find the delay to be frivolous.

On October 9, 2025, defendants' new counsel appeared and on October 22, 2025, defendants moved for a stay of the trial. On November 3, 2025, defendants, under a different theory and while the first motion was still pending, again moved for a stay.

The court heard oral argument on the motions for a stay and, noting that the case would already have an adjournment due to the matter being transferred to a new judge, denied both requests for a stay of the trial. Notably, in discussing the likelihood of success prong, the court made clear its view that defendants' election to seek an appeal without also seeking reargument was revealing. While a motion to reargue is not a condition precedent to seeking an appeal, counsel was unable to explain why — assuming defendants' intent is not to prolong this case — they would not seek both reargument and an appeal if they are asserting that there is a clear error in law or fact that could demonstrate a likelihood of success on the merits rather than an argument to change or expand current law. At the conclusion of the argument on the stay motions, the court advised counsel that this matter would be transferred to a new judge only after the plaintiff's motion for sanctions was determined following the hearing scheduled for the next week. Defendants' new counsel advised the court that the pending motion for sanctions had not [*4]previously been disclosed and the court made clear that defendants', and their prior counsel's, failure to inform them of that long-pending motion was neither the fault of the court nor plaintiff. Still, and at defendants' request filed by email after the close of business on the Friday before the Monday hearing, the court converted the hearing to a scheduling conference and plaintiff ultimately agreed to supplement the oral motion for costs in writing.

Pursuant to 22 NYCRR 130-1.1, an award of costs, including an attorney's fee, may be imposed against a party for frivolous conduct (see 22 NYCRR 130-1.1 [a], [b]; Zwickel v Underhill Land LLC, 237 AD3d 1455, 1458 [3d Dept 2025]). Among the types of conduct which will be considered frivolous are those determined to be "completely without merit in law" or "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (22 NYCRR 130-1.1 [c] [1], [2]; see Matter of Flanigan v Smyth, 148 AD3d 1249, 1250 [3d Dept 2017], lv dismissed 29 NY3d 1046 [2017]; Matter of West v Grant, 238 AD2d 803, 804 [3d Dept 1997] [Affirming the imposition of sanctions where party necessitated the withdrawal of their counsel to delay or prolong the resolution of the litigation]). "In determining whether conduct is frivolous, a court should consider such factors as the circumstances under which the conduct took place, the time available for investigating the legal or factual basis of the conduct, and whether the conduct was continued after its lack of legal or factual basis was apparent, should have been apparent or was brought to the attention of the sanctioned party" (First Deposit Nat. Bank v Van Allen, 277 AD2d 858, 860 [3d Dept 2000], citing 22 NYCRR 130-1.1 [c]). "To avoid sanctions, at the least, the conduct must have a good faith basis" (Tso-Horiuchi v Horiuchi, 122 AD3d 918, 918 [2d Dept 2014] [internal quotation marks and citation omitted]; accord Matter of Flanigan v Smyth, 148 AD3d at 1250).

Plaintiff seeks costs and attorney's fees in the amount of $9,683.05, including: (1) $2,400 for plaintiff's expert appearance fee, (2) $961 for 3.1 hours of plaintiff's costs for counsel's court appearance and travel on the day of the trial; (3) $3,797.05 for plaintiff's counsel's fees for opposition to defendants' applications seeking a stay of the trial; and (4) the $45 filing fee for the sanctions motion, and (5) $2,480 for estimated plaintiff's counsel's fees for repreparation for the new date trial.

Defendants assert, citing Campagnola v Mulholland, Minion & Roe, (76 NY2d 38, 43 [1990]), that "a client has an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney." Defendants further provide the affidavit of defendant George Barna, principal of defendant 28 Hampton LLC. Barna swears that he "did not discharge Prior Counsel with any malicious or harassing intent towards Plaintiff or to cause delay. The basis for discharging prior counsel was that, at the September 29, 2025 proceeding, concerns arose regarding the presentation of arguments and evidence." The court finds this explanation unbelievable in light of the history of this case and considering what actually took place in court on the morning of trial.

Notably, the Campagnola v Mulholland, Minion & Roe case does not stand for the proposition that a party is exempt from all consequences of the voluntary choice to discharge counsel. As outlined above, the court can deny an adjournment, particularly when faced with a pattern of delay, and such could result in default. Here, defendants assert that "concerns arose regarding the presentation of arguments and evidence," however, the parties had only stipulated regarding exhibits. There was no "presentation of arguments and evidence" that could, even in the light most favorable to defendants, have supported such a change. Courts disfavor the use of changing counsel to delay proceedings (cf. Woertler v Woertler, 110 AD2d at 948; see generally [*5]Citimortgage, Inc. v Nimkoff, 189 AD3d 763 [2d Dept 2020] [Holding there is no right to an adjournment where the record establishes that a party voluntarily discharged their attorney]; Arc on 4th St. Inc. v Quesada, 112 AD3d 431, 431 [1st Dept 2013], lv dismissed 23 NY3d 953 [2014] ). In Matter of Aponte v Jagnarain, the Appellate Division, Second Department affirmed both the denial of an adjournment and the grant of attorney fees where a party discharged their attorney on the eve of a hearing and engaged in other conduct that the trial court found to be dilatory tactics "undertaken primarily to delay or prolong the resolution of the litigation" (205 AD3d 800, 803 [2d Dept 2022]).

Costs and sanctions are appropriate where a party's frivolous conduct wastes "judicial resources" (Bernadette Panzella, P.C. v De Santis, 36 AD3d 734, 736 [2d Dept 2007], lv denied 9 NY3d 816 [2007]). Further, significant sanctions and costs have been awarded where a party's frivolous conduct delays resolution of a case (see e.g. Matter of Farley, 84 Misc 3d 667, 678 [Sup Ct, Monroe County 2024, Ciaccio, J.] [Awarding costs and sanctions in the amount of $10,000]). Finally, while courts disfavor default, even such a drastic sanction has been held appropriate where a party discharges their counsel to delay resolution of a case (see Moore St. Bldg. Corp. v Abbott Resource Servs. Co.., 233 AD3d 413, 414 [1st Dept 2024] [Affirming the denial of vacatur for a default where a review of the record indicated that defendant's principal wanted to delay the trial at all costs, and it was only when their attorney was unable to procure at least a one-week adjournment that they decided to fire him as a last-ditch effort to postpone the trial on the day it was to begin. "A continuance is not warranted where a party chooses to terminate its counsel on the day of trial"]). The court's election not to impose the drastic remedy of a default judgment on the day of trial does not foreclose, no less diminish, the appropriateness of imposing monetary sanctions amounting to those fees and expenses incurred as a direct result of defendants' action.

The court finds the change of counsel after the denial of the informal request for an adjournment was undertaken primarily to delay or prolong the resolution of the litigation and costs are appropriate to remedy the prejudice caused to plaintiff. While the court has rejected the two motions seeking a stay, it does not find them to be completely frivolous. Likewise, the court does not find the award of estimated future expenses to be meritorious. Therefore, the court limits the award of costs to $2,400 for plaintiff's expert appearance fee, and $961 for plaintiff's costs for counsel's court appearance and travel on the day of the trial.

Accordingly, it is

ORDERED, plaintiff's motion for sanctions is partially granted as to costs for plaintiff's expert and counsel's court appearance and travel and it is further

ORDERED, the remainder of plaintiff's motion for sanctions is partially denied; and it if further

ORDERED, defendant 28 HAMPTON LLC shall pay $3,361.00 to plaintiff within 30 days of this Order.

The court has uploaded the original Decision/Order to the case record in this matter as maintained on the NYSCEF website whereupon it is to be filed and entered by the Office of the County Clerk.

Counsel for the plaintiff is not relieved from the applicable provisions of CPLR 2220 and 202.5b (h) (2) of the Uniform Rules of Supreme and County Courts insofar as it relates to service and notice of entry of the filed document upon all other parties to the action/proceeding, whether accomplished by mailing or electronic means, whichever may be appropriate dependent [*6]upon the filing status of the party.