| Doe v Karpf |
| 2009 NY Slip Op 00333 [58 AD3d 669] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Jane Doe, Respondent, v Richard Karpf, Appellant. Kopff,Nardelli & Dopf, LLP, Nonparty Appellant. |
—[*1] Ruth E. Bernstein, New York, N.Y., for respondent.
In an action to recover damages for psychiatric malpractice, the defendant and his attorneysKopff, Nardelli & Dopf, LLP, appeal, as limited by their brief, from so much of an order of theSupreme Court, Nassau County (Palmieri, J.), dated November 21, 2007, as granted that branchof the plaintiff's motion which was to impose sanctions against the defendant and to recover anaward of an attorney's fee from the defendant pursuant to 22 NYCRR 130-1.1.
Ordered that the appeal by the nonparty Kopff, Nardelli & Dopf, LLP, is dismissed, as it isnot aggrieved by the portion of the order appealed from (see CPLR 5511); and it isfurther,
Ordered that the order is reversed insofar as appealed from by the defendant, on the law,with costs to the defendant, and that branch of the motion which was to impose sanctions againstthe defendant and to recover an award of an attorney's fee from the defendant pursuant to 22NYCRR 130-1.1 is denied.
It is settled that sanctions under 22 NYCRR 130-1.1 are intended to limit frivolous andharassing behavior (see Glenn vAnnunziata, 53 AD3d 565 [2008]; Breslaw v Breslaw, 209 AD2d 662 [1994]).Conduct is frivolous if "it is undertaken primarily to delay or prolong the resolution of thelitigation, or to harass or maliciously injure another" (22 NYCRR130-1.1 [c] [1], [2]; see Glenn v Annunziata, 53 AD3d565, 566 [2008]; Breslaw v Breslaw, 209 AD2d 662 [1994]). In this case, theSupreme Court imposed sanctions upon the defendant for moving for a protective order.However, under the circumstances [*2]of this case, thedefendant's motion was a legitimate and appropriate response to the plaintiff's attempt to obtainfurther discovery after she had filed her note of issue. Dillon, J.P., Ritter, Carni and Leventhal,JJ., concur.