Commercial Division Blog

Posted: May 2, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz / Categories Sanctions, Forum Non Conveniens, Attorney Fees

Plaintiff Sanctioned and Ordered to Pay Defendants' Attorneys' Fees for Making a Frivolous Motion for Reargument and Renewal

On April 12, 2022, Justice Jennifer Schecter of the New York County Commercial Division issued a decision in Cattan v. Ermotti, 2022 NYLJ LEXIS 367, sanctioning the plaintiff and ordering it to pay the defendants' attorneys' fees incurred in opposing the plaintiff's motion for reargument and renewal of the court's dismissal order based on a forum-selection clause, explaining:

By order dated December 30, 2021, the court dismissed this action based on a forum selection clause and declined to reach the other proffered grounds for dismissal (Dkt. 150). Plaintiff moves for reargument and renewal, arguing there is no basis to dismiss the action "on the ground of forum non conveniens" (Dkt. 153 at 6). After apprising plaintiff of the reasons that they believe this motion is frivolous and requesting that it be withdrawn to avoid a sanctions request, defendants submitted opposition and cross-moved for sanctions for having to respond to a motion that fails to address the actual basis for dismissal and instead pointlessly takes issue with a ground for dismissal on which the court never opined. This motion should never have been made. The court did not dismiss the action on the ground of inconvenient forum. The court concluded that the action had [*3] to be brought in Switzerland based on a forum selection clause. This motion therefore could not have provided plaintiff with any possible relief and "is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" (22 NYCRR 130-1.1[c][1]; see Intercontinental Credit Corp. Div. of Pan Am. Trade Dev. Corp. v. Roth, 78 NY2d 306, 308 [1991]).

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If there was some reasonable basis for this motion then sanctions would not be issued. But plaintiff's motion takes issue with a basis for dismissal the court never reached based on arguments refuted by settled authority of which it was aware, and his argument for ignoring that authority is based on an illogical proposition that has no basis whatsoever in the case law on which he relies. This CPLR 2221 motion further lacks merit because it principally relies on legal arguments and statutes that were never even mentioned in opposition to the motion to dismiss in the first place (for example, [*5] CPLR 327[b] and General Obligations Law §5-1402) despite every opportunity to have done so. No reasonable attorney should have thought this motion had any legal basis and defendants should not be forced to bear the costs of having to oppose it. Plaintiff shall therefore reimburse defendants for the reasonable costs and attorneys' fees incurred in opposing this motion.

While an attorney must zealously advocate for his or her client, as this decision shows, zealous advocacy must not be confused for frivolous conduct. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions about making or defending against a sanctions motion,