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Doone v. Reiser

272 A.D.2d 368 Court N.Y. App. Div. Decision date 2000-05-08 English

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p. 368
Eileen M. Doone, Individually and as Next of Kin of John Sexton, Jr., Deceased, Respondent, v Ralph G. Reiser, Defendant and Third-Party Plaintiff-Appellant-Respondent. Richard J. Montelione et al., Third-Party Defendants-Respondents-Appellants.
[707 NYS2d 908]

—In an action to recover damages for legal malpractice and breach of contract, the defendant third-party plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Levitt, J.), dated December 17, 1998, as granted the motion of the third-party defendants to dismiss the third-party complaint, and the third-party defendants cross-appeal from so much of the same order as denied their request for an award of sanctions and legal fees pursuant to 22 NYCRR 130-1.1.

Ordered that the order is modified by deleting the provision thereof denying that branch of the motion which was for an award of sanctions and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable to the plaintiffs-respondents and the third-party defendants-respondents-appellants, and the matter is remitted to the Supreme Court, Nassau County, for a hearing in accordance herewith.

The Supreme Court correctly determined that the third-party complaint, even if liberally construed in favor of the third-party plaintiff (see, e.g., Leon v Martinez, 84 NY2d 83 , 87-88), fails to allege a breach of any duty by the third-party defendants giving rise to a cognizable claim to recover damages for legal malpractice (see, e.g., Rosner v Paley, 65 NY2d 736 , 738; cf., Schauer v Joyce, 54 NY2d 1 , 5).

However, the Supreme Court erred in denying the third-party defendants’ request for sanctions. The entire third-party

p. 369
action, including the various motions made by the third-party plaintiff, is frivolous within the. meaning of 22 NYCRR 130-1.1 (c) in that it is without basis in law or fact, and was designed merely to harass and delay his opponents (see, e.g., Mitchell v Herald Co., 137 AD2d 213 ; see also, Intercontinental Credit Corp. Div. v Roth, 78 NY2d 306 ; Mantovi v Nico Constr. Co., 217 AD2d 650 ). Accordingly, the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issue of the appropriate amount of a sanction to be imposed and reasonable counsel fees to be awarded pursuant to 22 NYCRR 130-1.1. Joy, J. P., Altman, Goldstein and H. Miller, JJ., concur.

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