SUPREME COURT SHOULD NOT HAVE ORDERED DEFENDANT TO PAY PLAINTIFF’S ATTORNEY’S FEES AS A SANCTION FOR FRIVOLOUS CONDUCT BECAUSE THE CONDUCT DID NOT OCCUR WITHIN THE PROCEEDINGS BEFORE THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant (Hudes) in this dispute over an easement should not have been sanctioned by ordering him to pay plaintiff’s attorney’s fees for “frivolous conduct.” The facts were not described. The sanction was inappropriate because the behavior which triggered it did not occur within the proceeding before the court:

Courts have discretion to award costs or impose financial sanctions against a party or attorney in a civil action for engaging in frivolous conduct (see 22 NYCRR 130-1.1[a], [b]). Conduct may be deemed frivolous if it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another,” or “asserts material factual statements that are false”… . However, the scope of the rule is limited to frivolous conduct in the proceeding before the court, and does not extend to “tortious conduct in general” … .

Here, the Supreme Court erred in awarding the plaintiff attorneys’ fees against Hudes personally, since Hudes’ misconduct did not occur within the proceeding before the court and, therefore, was not “frivolous” within the meaning of 22 NYCRR 130-1.1 … . Industry LIC Condominium v Hudes, 2021 NY Slip Op 06836, Second Dept 12-8-21