| Matter of Miller v Miller |
| 2012 NY Slip Op 05002 [96 AD3d 943] |
| June 20, 2012 |
| Appellate Division, Second Department |
| In the Matter of Teresa M. Miller, Appellant, v Mark H.Miller, Respondent. |
—[*1] Jeffrey S. Schecter & Associates, P.C., Garden City, N.Y., for respondent. Catherine A. Sheridan, Carle Place, N.Y., attorney for the children.
In related proceedings pursuant to Family Court Act articles 6 and 8, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Nassau County (Stack,J.H.O.), dated May 6, 2010, as granted those branches of the father's motions which were for anaward of an attorney's fee pursuant to 22 NYCRR 130-1.1 to the extent of directing the motherand her attorney to each pay the father's attorney the sum of $2,500.
Ordered that the appeal by the mother from so much of the order as granted those branches ofthe father's motions which were for an award of an attorney's fee pursuant to 22 NYCRR 130-1.1to the extent of directing her attorney to pay the father's attorney the sum of $2,500 is dismissed,as the mother is not aggrieved by that portion of the order (see CPLR 5511; Scopellitiv Town of New Castle, 92 NY2d 944 [1998]; Matter of Glatzer v Glatzer, 73 AD3d 1173, 1174 [2010]; Impastato v Impastato, 62 AD3d752 [2009]; Mohler v Nardone,53 AD3d 600 [2008]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the facts and in the exercise ofdiscretion, and those branches of the father's motions which were for an award of an attorney'sfee pursuant to 22 NYCRR 130-1.1, payable by the mother are denied; and it is further,
Ordered that one bill of costs is awarded to the mother.
The court rule set forth in 22 NYCRR 130-1.1,which is intended to limit frivolous andharassing behavior (see Doe vKarpf, 58 AD3d 669, 670 [2009]), authorizes a court, in its discretion, to award a partyin a civil action reasonable attorney's fees resulting from frivolous conduct (see Matter of Ernestine R., 61 AD3d874, 876 [2009]). Conduct is frivolous within the meaning of the rule where, inter alia, it is"completely without merit in law and cannot be supported by a reasonable argument for anextension, modification or reversal of existing law" or "undertaken primarily to delay or prolongthe resolution of the litigation, or to harass or maliciously injure another" (22 NYCRR 130-1.1[c] [1], [2]; see Gelobter v Fox, 90AD3d 829, 832 [2011]; Dank vSears Holding Mgt. Corp. 69 AD3d 557, 558 [2010]; Matter of Ernestine R., 61AD3d at 876; Doe v Karpf, 58 AD3d at 670). A party seeking the imposition of asanction or an award of an attorney's fee pursuant to 22 NYCRR [*2]130-1.1 (c) has the burden of demonstrating that the conduct of theopposing party was frivolous within the meaning of the rule, or that the action or proceeding wascommenced or continued in bad faith (see Maybaum v Maybaum, 89 AD3d 692, 697 [2011]; Providence Wash. Ins. Co. v Munoz,85 AD3d 1142, 1144 [2011]; Broich v Nabisco, Inc., 2 AD3d 474, 475 [2003]).
Here, the father failed to demonstrate that the mother's custody/visitation and family offensepetitions were frivolous within the meaning of 22 NYCRR 130-1.1 (c). One of the mother'scustody/visitation petitions, and one of her family offense petitions, were predicated upon thefather's arrest on charges including endangering the welfare of a child. After all criminal chargesagainst the father were dismissed, the mother withdrew the family offense petition predicatedupon his arrest, and sought, but was denied, permission to withdraw the custody/visitationpetition predicated upon his arrest. Under these circumstances, it cannot be concluded that thepetitions predicated upon the father's arrest were either brought or continued in bad faith. Further,regardless of whether the two additional petitions filed by the mother were likely to besuccessful, they were not so completely without merit in law as to be frivolous, and the fatherfailed to demonstrate that they were filed to delay the proceedings, or to harass or maliciouslyinjure him. Accordingly, the Family Court improvidently exercised its discretion in grantingthose branches of the father's motions which were to recover an attorney's fee from the motherpursuant to 22 NYCRR 130-1.1 (see Maybaum v Maybaum, 89 AD3d at 697; Matter of Wieser v Wieser, 83 AD3d950 [2011]; Matter of Katz vShomron, 71 AD3d 770 [2010]; Matter of Ernestine R., 61 AD3d at 876; Glenn v Annunziata, 53 AD3d565, 566 [2008]). Skelos, J.P., Eng, Belen and Cohen, JJ., concur.