| Joan 2000, Ltd. v Deco Constr. Corp. |
| 2009 NY Slip Op 07593 [66 AD3d 841] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Joan 2000, Ltd., Doing Business as Trentini Trucking Co.,Plaintiff, v Deco Construction Corp. et al., Respondents, et al., Defendants. AnthonyPiazza et al., Nonparty Appellants. |
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In an action, inter alia, to recover damages for breach of contract, nonparty Eric W. Berry,the attorney for the defendant WBP Central Associates, LLC, and nonparty Anthony Piazzaappeal from a judgment of the Supreme Court, Westchester County (Smith, J.), dated April 3,2008, which, upon an order of the same court dated March 6, 2008, granting, after a hearing, thatbranch of the motion of the defendant Deco Construction Corp. which was to impose sanctionsupon them pursuant to 22 NYCRR 130-1.1 to the extent of imposing a sanction upon Eric W.Berry in the sum of $6,000, and upon Anthony Piazza in the sum of $5,000, imposed thosesanctions upon them.
Ordered that on the Court's own motion, the notice of appeal is deemed also to be a notice ofappeal by the nonparty Anthony Piazza (see CPLR 2001; Matter of Tagliaferri vWeiler, 1 NY3d 605 [2004]; Alamv Taxi Wheels to Lease, Inc., 57 AD3d 457 [2008]); and it is further,
Ordered that the judgment is reversed, on the law, on the facts, and in the exercise ofdiscretion, without costs or disbursements, that branch of the motion of the defendant DecoConstruction Corp. which was to impose sanctions upon the appellants pursuant to 22 NYCRR130-1.1 is denied, and the order is modified accordingly.
Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the attorneyfor a party for frivolous conduct (see 22 NYCRR 130-1.1 [b]). Conduct is frivolous if itis completely without merit in law or fact and cannot be supported by a reasonable argument forthe extension, modification, or reversal of existing law; it is taken to primarily delay or prolongthe resolution of the litigation, or harass or maliciously injure another; or it asserts materialfactual statements that are false (see 22 NYCRR 130-1.1 [c]; Mascia v Maresco, 39 AD3d 504[2007]; Greene v Doral Conference Ctr.Assoc., 18 AD3d 429, 431 [2005]). Here, the Supreme Court improvidently exercisedits discretion in imposing a sanction upon Eric W. Berry, the attorney for the defendant WBPCentral Associates, LLC, as his conduct was not frivolous within the meaning of 22 NYCRR130-1.1 (see Wagner v Goldberg, 293 AD2d 527 [2002]; Matter of Gavilanes vDilan, 281 AD2d 546 [2001]).
Additionally, the Supreme Court had no authority to impose a sanction upon Anthony Piazzapursuant to 22 NYCRR 130-1.1, since he is neither a party to this action nor an attorney (seeBrock v Wagner, 283 AD2d 535 [2001]; Saastomoinen v Pagano, 278 AD2d 218[2000]). Prudenti, P.J., Miller, Chambers and Roman, JJ., concur.