| Miller v Cruise Fantasies, Ltd. |
| 2010 NY Slip Op 04970 [74 AD3d 919] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Craig Miller, Appellant, v Cruise Fantasies, Ltd., et al.,Respondents. |
—[*1] Wilson Jacobson, P.C., White Plains, N.Y. (Roni L. Jacobson of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals (1), aslimited by his brief, from so much of an order of the Supreme Court, Westchester County(Donovan, J.), dated February 15, 2008, as, sua sponte, imposed a sanction upon him in the sumof $1,500, in effect, pursuant to 22 NYCRR 130-1.1, based upon his filing of a motion to holdthe defendants in contempt, (2) from an order of the same court entered February 20, 2008,which granted that branch of the defendants' motion which was for an award of costs, includingan attorney's fee, incurred in opposing his motion to hold the defendants in contempt, anddirected him to pay costs, including an attorney's fee, to the defendants in the principal sum of$9,933, and (3) from a judgment of the same court entered March 28, 2008, which, upon theorder entered February 20, 2008, is in favor of the defendants and against him in the principalsum of $9,933.
Ordered that on the Court's own motion, the notice of appeal from the order dated February15, 2008, is deemed to be an application for leave to appeal from so much of the order as, suasponte, imposed a sanction upon the plaintiff in the sum of $1,500, and leave to appeal is granted(see CPLR 5701 [c]); and it is further,
Ordered that the order dated February 15, 2008, is affirmed insofar as appealed from; and itis further,
Ordered that the appeal from the order entered February 20, 2008, is dismissed; and it isfurther,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order entered February 20, 2008, must be dismissed [*2]because the right of direct appeal therefrom terminated with theentry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). Theissues raised on appeal from the order entered February 20, 2008, are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
"A court may sua sponte impose sanctions against an attorney or a party to the litigation, oragainst both, but the attorney or party to be sanctioned must be afforded a reasonable opportunityto be heard" (Kamen vDiaz-Kamen, 40 AD3d 937, 937 [2007]; see 22 NYCRR 130-1.1 [a], [d];Matter of Griffin v Panzarin, 305 AD2d 601, 603 [2003]; Kelleher v Mt. Kisco Med.Group, 264 AD2d 760, 761 [1999]; Morrison v Morrison, 246 AD2d 634 [1998]).Conduct during litigation is frivolous and subject to sanction and/or the award of costs under 22NYCRR 130-1.1 "if it is completely without merit in law and cannot be supported by areasonable argument for an extension, modification or reversal of existing law or. . . it is undertaken primarily to delay or prolong the resolution of the litigation, orto harass or maliciously injure another" (Astrada v Archer, 71 AD3d 803, 807 [2010] [internal quotationmarks omitted]; see Greene v DoralConference Ctr. Assoc., 18 AD3d 429, 431 [2005]; Tyree Bros. Envtl. Servs. vFerguson Propeller, 247 AD2d 376, 377 [1998]).
Applying these principles to the matter at bar, the Supreme Court providently exercised itsdiscretion in, sua sponte, imposing a sanction upon the plaintiff, and additionally granting thatbranch of the defendants' subsequent motion which was for an award of costs, including anattorney's fee. Following oral and written warnings to the plaintiff that sanctions may be imposedfor frivolous conduct if the plaintiff continued prosecution of the contempt proceeding, theSupreme Court presided over a contempt hearing at which the plaintiff was afforded a reasonableopportunity to be heard, and was permitted to cross-examine witnesses (see Kamen vDiaz-Kamen, 40 AD3d at 937; cf. Matter of Griffin v Panzarin, 305 AD2d at 603).
The plaintiff's claim that the defendants violated a prior court order with respect to, inter alia,their alleged interference with booking a cruise on a ship was "completely without merit" andcould not be supported by any "reasonable argument" or existing law (see Matter of Tercjak v Tercjak, 49AD3d 773, 773-774 [2008]; Kucker v Kaminsky & Rich, 7 AD3d 491, 492 [2004]).
Accordingly, the Supreme Court providently exercised its discretion in imposing costs,including an award of a reasonable attorney's fee, as well as a sanction upon the plaintiff (seeAstrada v Archer, 71 AD3d at 803; Kamen v Diaz-Kamen, 40 AD3d at 937-938).Dillon, J.P., Balkin, Belen and Lott, JJ., concur.