| Pickens v Castro |
| 2008 NY Slip Op 08026 [55 AD3d 443] |
| October 23, 2008 |
| Appellate Division, First Department |
| Claire Pickens, Respondent, v Franklyn Castro,Appellant. |
—[*1] McCarthy Fingar LLP, White Plains (Dolores Gebhardt of counsel), for respondent.
Order, Supreme Court, New York County (Laura Visitacion-Lewis, J.), entered on or aboutMarch 7, 2007, which, to the extent appealed from as limited by the briefs, denied defendant'smotion to modify the prior order, entered November 29, 2006, which granted his application forthe appointment of a receiver to sell the subject property and granted plaintiff's cross motion forattorney's fees and costs, unanimously affirmed, without costs. Appeal from the November 29,2006 order unanimously dismissed, without costs.
Defendant accepted the terms of plaintiff's proposed order for the appointment of a receiverwhich specified that the receiver was, among other things, authorized to obtain a mortgage orhome equity loan, to be consolidated with the already existing loan, in order to sell the maritalresidence on the open market for the highest possible price. Thus, the motion court did not err indirecting the receiver to further encumber the property in order to comply with the parties' intent.
Further, the court properly awarded counsel fees and costs to plaintiff in the sum of$3,153.27 for the filing of a frivolous motion, based upon plaintiff's cross motion specificallyasking for counsel fees and expenses incurred in opposing defendant's frivolous motion and theaccompanying affirmation from her lawyer seeking an award of sanctions. The court found thatthe frivolous conduct undertaken by defendant was the filing of a motion that was " 'undertakenprimarily to delay or prolong the resolution of the litigation, or to harass or maliciously injureanother' (22 NYCRR 130-1.1 [c] [2])." Trial judges should be accorded wide latitude todetermine the appropriate sanctions for dilatory and improper attorney conduct and we will deferto a trial court regarding sanctions determinations unless there is a clear abuse of discretion(see Sawh v Bridges, 120 AD2d 74, 78-79 [1986], lv dismissed 69 NY2d 852[1987]). Here, we find that the motion court properly exercised its discretion.Concur—Tom, J.P., Saxe, Buckley, Gonzalez and Catterson, JJ.