| Finkelman v SBRE, LLC |
| 2010 NY Slip Op 02742 [71 AD3d 1081] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Perry Finkelman, Respondent, v SBRE, LLC, Appellant,et al., Defendants. |
—[*1] Dollinger, Gonski & Grossman, Carle Place, N.Y. (Matthew Dollinger, Floyd G. Grossman,and Alicia B. Devins of counsel), for respondent.
In an action for a judgment declaring, inter alia, that the plaintiff is entitled to recover adown payment given pursuant to a contract for the sale of development rights, the defendantSBRE, LLC, appeals from an order of the Supreme Court, Nassau County (Warshawsky, J.),entered September 26, 2008, which granted the plaintiff's motion for an award of costs, includingan attorney's fee, against it pursuant to 22 NYCRR 130-1.1.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the plaintiff's motion for an award of costs, including an attorney's fee, against the appellantpursuant to 22 NYCRR 130-1.1 is denied.
Pursuant to 22 NYCRR 130-1.1, an award of costs, including an attorney's fee, may beimposed against a party for frivolous conduct (see 22 NYCRR 130-1.1 [a], [b]). Amongthe types of conduct which will be considered frivolous are those determined to be "completelywithout merit in law" or "undertaken primarily to delay or prolong the resolution of thelitigation, or to harass or maliciously injure another" (22 NYCRR 130-1.1 [c] [1], [2]; Glennv Annunziata, 53 AD3d 565, 566 [2008]; Ofman v Campos, 12 AD3d 581, 582[2004]). "In making that determination, the court must consider 'the circumstances under whichthe conduct took place' and 'whether or not the conduct was continued when its lack of legal orfactual basis was apparent [or] should have been apparent' " (Glenn v Annunziata, 53AD3d at 566, quoting 22 NYCRR 130-1.1 [c]).
Here, the Supreme Court improvidently exercised its discretion in imposing an award ofcosts, including an attorney's fee, against the defendant SBRE, LLC (hereinafter SBRE),pursuant to 22 NYCRR 130-1.1 for relying upon a particular legal theory in defending itself andasserting counterclaims in the instant matter. Under the circumstances of this case, SBRE'sreliance upon the legal theory was not frivolous because SBRE raised a genuine legal dispute(see Stow v Stow, 262 AD2d 550, 551 [1999]). Moreover, the record does not supportthe Supreme Court's conclusion that SBRE relied upon this theory primarily to delay resolutionof the litigation. Accordingly, SBRE's conduct did not warrant the imposition of an award ofcosts, including an attorney's fee, pursuant to 22 NYCRR 130-1.1.[*2]
In light of our determination, we need not reach SBRE'sremaining contentions. Prudenti, P.J., Balkin, Leventhal and Austin, JJ., concur. [Prior CaseHistory: 2008 NY Slip Op 32660(U).]