The First Department, in a full-fledged opinion by Justice Tom, determined defendant law firm was entitled to sanctions for the frivolous conduct of plaintiff’s counsel. Plaintiff’s counsel had repeatedly, including on appeal, made the false allegation that defendant law firm had withdrawn two causes of action which would have been successful. The two causes of action had, in fact, been timely brought by defendant law firm, but were subsequently withdrawn by successor counsel:
… [D]espite it having been apparent from the record that successor counsel was the one who withdrew the conversion and breach of contract claims in the federal action and not defendants, and despite being alerted to this fact by the record of this case and Supreme Court on multiple occasions, counsel persists in repeating a materially false claim to this Court.
There can be no good faith basis for the repetition of this materially false claim on appeal, and we find that counsel’s behavior would satisfy any of the criteria necessary to deem conduct frivolous. In fact, the only fair conclusion is that the prosecution of this appeal and knowing pursuit of a materially false and meritless claim was meant to delay or prolong the litigation or to harass respondents.
“Among the factors we are directed to consider is whether the conduct was continued when it became apparent, or should have been apparent, that the conduct was frivolous, or when such was brought to the attention of the parties or to counsel (22 NYCRR 130-1.1 [c]), circumstances that are replete in this record as noted above”… .
We also consider that sanctions serve to deter future frivolous conduct “not only by the particular parties, but also by the Bar at large” … . The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics.
Here, counsel was ethically obligated to withdraw any baseless and false claims, if not upon his own review of the record, certainly by the time Supreme Court advised him of this fact. Instead, counsel continued to repeat a knowingly false claim in what could only be described as a purposeful attempt to mislead this Court, and pursued claims which were completely without merit in law or fact.
The appropriate remedy for maintaining a frivolous appeal is the award of sanctions in the amount of the reasonable expenses and costs including attorneys’ fees incurred in defending the appeal … . Boye v Rubin & Bailin, LLP, 2017 NY Slip Op 04239, 1st Dept 5-30-17
ATTORNEYS (ETHICS, SANCTIONS, FRIVOLOUS CONDUCT, PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/SANCTIONS (ATTORNEYS, FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/ETHICAL VIOLATIONS (ATTORNEYS, FRIVOLOUS CONDUCT, PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/FRIVOLOUS CONDUCT (ATTORNEYS, FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/APPEALS (FRIVOLOUS, FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)