Appellate Division: Second Judicial Department

M301838

AFA/

BETSY BARROS, J.P.

JOSEPH J. MALTESE

BARRY E. WARHIT

CARL J. LANDICINO, JJ.

2022-01359 L.T. Motors Auto Sales, Inc., appellant, v Kaplon-Belo Associates, Inc., et al., respondents. (Index No. 709506/2021)

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Queens County, dated January 25, 2022, which was determined by decision and order of this Court dated September 25, 2024. On the Court's own motion, in the decision and order of this Court dated September 25, 2024, the parties were directed to show cause why an order should or should not be made and entered imposing sanctions and/or costs, if any, including appellate counsel fees, upon the appellant and/or the appellant's counsel, M. Daniel Bach, 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 of this Court dated September 25, 2024, and the papers filed in response thereto, it is

ORDERED that the appellant is directed to pay costs to the respondents in the sum of $4,068.14 as reasonable appellate counsel fees, and this sum shall be paid to the respondents' attorney within 20 days after service of a copy of this decision and order on motion upon counsel for the appellant; and it is further,

ORDERED that the appellant's counsel, M. Daniel Bach, is directed to pay costs to the respondents in the sum of $4,068.14 as reasonable appellate counsel fees, and this sum shall be paid to the respondents' attorney within 20 days after service of a copy of this decision and order on motion upon counsel for the appellant; and it is further,

ORDERED that the Clerk of the Supreme Court, Queens 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, shall serve a copy of this decision and order on motion upon counsel for the parties by regular mail; and it is further,

ORDERED that within 10 days after payment of the awards of costs the appellant and the appellant's counsel shall file proof of payment with the Clerk of this Court, via email at [email protected].

The appellant commenced the underlying action for specific performance of a purchase option against the respondents. The Supreme Court, in an order dated January 25, 2022, inter alia, granted a motion by the respondents to dismiss the complaint on the grounds that the action was barred by the doctrines of res judicata and collateral estoppel. In the order dated September 25, 2024, this Court, among other things, affirmed the order dated January 25, 2022. This Court held that the respondents established, in support of their motion, that the action was barred by the doctrines of res judicata and collateral estoppel, upon evidence that in a prior action to foreclose a tax lien, the court therein determined that the purchase option had expired, and that the plaintiff, in a separate action commenced in 2013, asserted the same cause of action for specific performance of the purchase option against the respondents, and the court therein had determined that the cause of action was barred by the doctrines of res judicata and collateral estoppel. This Court further held that in opposition, the plaintiff failed to demonstrate that it did not have a full and fair opportunity to contest the prior determinations. In addition, this Court stated that the appeal might be frivolous as the appellant's arguments appeared to be "completely without merit in law and [could not] be supported by a reasonable argument for an extension, modification, or reversal of existing law" (22 NYCRR 130-1.1[c][1]), and/or were undertaken primarily to delay or prolong the resolution of the litigation (see id. § 130-1.1[c][2]).

Based upon the papers submitted in response to the orders to show cause, the imposition of reasonable appellate counsel fees incurred against the appellant and the appellant's counsel are warranted pursuant to 22 NYCRR 130-1.1(c), in the amounts indicated.

BARROS, J.P., MALTESE, WARHIT and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court