| Matter of Lawrence |
| 2010 NY Slip Op 08853 [79 AD3d 417] |
| December 2, 2010 |
| Appellate Division, First Department |
| In the Matter of the Estate of Sylvan Lawrence, Deceased. GraubardMiller, Respondent; Richard S. Lawrence, Appellant, et al., Respondents. Richard S. Lawrence et al.,Plaintiffs, v Graubard Miller et al., Defendants. |
—[*1] Flemming Zulack Williamson & Zauderer LLP, New York (Mark C. Zauderer of counsel), forrespondent.
Orders, Surrogate's Court, New York County (Troy K. Webber, S.), entered on or aboutOctober 1, 2009, which, to the extent appealed from, confirmed the Referee's July 10, 2009 andSeptember 30, 2009 reports recommending, respectively, that petitioner's application to withdraw itsSCPA 2110 claim be granted without conditioning the withdrawal on the payment of attorneys' feesand that respondent Richard Lawrence's motion for summary judgment dismissing petitioner's tortiousinterference claim be granted without imposing attorneys' fees, unanimously affirmed, without costs.
This proceeding arises from a fee dispute between petitioner Graubard Miller and its client of morethan 20 years, Alice Lawrence, in connection with the estate of Mrs. Lawrence's late husband, SylvanLawrence. The history of the proceeding was reviewed by this Court in a prior appeal (48 AD3d 1[2007], affd 11 NY3d 588 [2008]). At issue here is the voluntary discontinuance of petitioner'sclaim pursuant to SCPA 2110 against respondent, as executor, for legal fees for benefits conferredupon the estate and its claim against [*2]respondent, individually, fortortious interference with a contract.
The Surrogate properly permitted petitioner to discontinue the SCPA 2110 claim withoutconditioning discontinuance on the payment of attorneys' fees (see CPLR 3217 [b]; Beigelv Cohen, 158 AD2d 339 [1990]). Respondent does not challenge the Referee's finding that theSCPA 2110 claim was not frivolous, and petitioner has asserted good faith reasons for its decision towithdraw the claim. Thus, no special circumstances exist to preclude discontinuance (see Tucker vTucker, 55 NY2d 378, 383 [1982]).
Respondent's request for attorneys' fees as a sanction for frivolous conduct, made for the first timein reply on his motion to dismiss the tortious interference claim, failed to comply with the noticerequirement of 22 NYCRR 130-1.1 (d). Accordingly, the Surrogate properly denied the requestwithout prejudice to a separate application affording petitioner an opportunity to submit opposition (see Leskinen v Fusco, 18 AD3d 387,389 [2005], lv dismissed 6 NY3d 807 [2006]). Concur—Tom, J.P., Friedman,DeGrasse, Freedman and Manzanet-Daniels, JJ.