| Schwab v Phillips |
| 2010 NY Slip Op 08721 [78 AD3d 1036] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Rick A. Schwab, Respondent, v Beth Ann Phillips,Defendant. Peter J. Mollo, Nonparty Appellant. |
—[*1] Robert G. Smith, New York, N.Y., for respondent.
In an action for a divorce and ancillary relief, nonparty Peter J. Mollo, the attorney for thedefendant, appeals from an order of the Supreme Court, Kings County (Adams, J.), dated January28, 2009, which, after a hearing, granted that branch of the plaintiff's motion which was toimpose a sanction upon him and for an award of costs, including an attorney's fee, pursuant to 22NYCRR 130-1.1, directed him to pay a sanction to the Lawyers' Fund for Client Protection in thesum of $2,500, and, in effect, awarded costs and an attorney's fee to the plaintiff in the sum of$40,000, payable by him and the defendant.
Ordered that the order is modified, on the law and the facts, by deleting the provision thereof,in effect, awarding costs and an attorney's fee to the plaintiff in the sum of $40,000, andsubstituting therefor a provision awarding costs and an attorney's fee to the plaintiff in the sum of$10,000; as so modified, the order is affirmed, without costs or disbursements.
The Supreme Court properly granted that branch of the plaintiff's motion which was toimpose a sanction upon the nonparty appellant, Peter J. Mollo, and for an award of costs,including an attorney's fee, pursuant to 22 NYCRR 130-1.1. As attorney for the wife in theinstant divorce action, the appellant engaged in frivolous conduct, as defined by 22 NYCRR130-1.1 (c), when he deposited funds from the sale of marital property into his attorney escrowaccount and, during the pendency of the divorce action, issued a check drawn on that account tothe wife in an amount equal to approximately one half of the funds deposited, thereby violating astipulation entered into between the husband and wife. The appellant falsely reported to theSupreme Court that he was unaware of the stipulation. That false representation constituted amaterial factual statement that was false and, therefore, was frivolous (see 22 NYCRR130-1.1 [c] [3]). Although the Supreme Court properly set forth "the conduct on which the. . . imposition [of sanctions was] based [and] the reasons why [it] found [such]conduct to be frivolous" (22 NYCRR 130-1.2; see Dwaileebe v Six Flags Darien Lake,21 AD3d 1282, 1282-1283 [2005]), it failed to state why it found the sum of $2,500 to beappropriate (see 22 NYCRR 130-1.2; Bernadette Panzella, P.C. v DeSantis, 36AD3d 734, 736 [2007]; Drummond v Drummond, 291 AD2d 368, 370 [2002]).However, we find that the sum of $2,500 was appropriate in light of the appellant's conduct(see Astrada v Archer, 71 AD3d 803 [2010]; see also Bernadette Panzella, P.C. vDeSantis, 36 AD3d at 736).[*2]
As for the award of costs and an attorney's fee, theSupreme Court properly set forth "the conduct on which the award . . . [was] based[and] the reasons why [it] found [such] conduct to be frivolous" (22 NYCRR 130-1.2). However,the Supreme Court failed to set forth the reasons why it found the sum of $40,000 to beappropriate, as required by 22 NYCRR 130-1.2. An award in this sum was excessive. An awardof costs and an attorney's fee in the sum of $10,000 is appropriate in light of the proof as to suchcosts and attorney's fees presented by the husband's attorney (cf. Weinstock v Weinstock,253 AD2d 873 [1998], cert denied 526 US 1088 [1999]). Fisher, J.P., Florio, Leventhaland Hall, JJ., concur.