| Degtiarev v Delecia-Kenny |
| 2013 NY Slip Op 02213 [105 AD3d 691] |
| April 3, 2013 |
| Appellate Division, Second Department |
| Tatiana Degtiarev, Respondent, v LindaDelecia-Kenny, Defendant. Robert P. Tusa, NonpartyAppellant. |
—[*1]
In an action to recover damages for personal injuries, nonparty Robert P. Tusaappeals from an order of the Supreme Court, Kings County (Saitta, J.), dated April 12,2012, which denied his motion to vacate so much of an order of the same court datedOctober 20, 2011, as awarded the plaintiff an attorney's fee in the sum of $3,500, payableby him as a sanction pursuant to 22 NYCRR 130-1.1.
Ordered that the notice of appeal by the defendant is deemed to be a notice of appealby Robert P. Tusa (see CPLR 2001; Matter of Tagliaferri v Weiler, 1NY3d 605 [2004]); and it is further,
Ordered that the order dated April 12, 2012, is affirmed, without costs ordisbursements.
The arguments advanced by the nonparty appellant, Robert P. Tusa, in opposition toa motion by the plaintiff to restore the action to active pre-note-of-issue status werecompletely without merit in law, failed to address the applicable statutory and case law,and appear to have been advanced, once their lack of merit was apparent, for the purposeof delaying restoration of the action (see 22 NYCRR 130-1.1 [c]; Yan v Klein, 35 AD3d729, 729-730 [2006]; Curcio v Hogan Coring & Sawing Corp., 303 AD2d357, 358-359 [2003]; Matter of Parkside Ltd. Liab. Co., 294 AD2d 582, 584[2002]). Contrary to the nonparty appellant's contention, he was given advance notice,prior to oral argument on the plaintiff's motion, that the Supreme Court was consideringawarding the plaintiff a reasonable attorney's fee as a sanction for the appellant'sfrivolous conduct in opposing the motion to restore the action to the calendar, and theappellant was given an opportunity to be heard on this issue (see 22 NYCRR130-1.1 [a], [d]; cf. Telemark Constr. v Fleetwood & Assoc., 236 AD2d 462, 463[1997]; Deeb v Tougher Indus., 216 AD2d 667, 668 [1995]). Accordingly, theSupreme Court providently exercised its discretion in awarding the plaintiff an attorney'sfee as a sanction pursuant to 22 NYCRR 130-1.1. Rivera, J.P., Dickerson, Leventhal andLott, JJ., concur.