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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: November 24, 2019

Counsel Sanctioned for Bringing Frivolous Action

On November 13, 2019, Justice Garguillo of the Suffolk County Commercial Division issued a decision in Doscher v. Meyer, 2019 NY Slip Op. 08171, sanctioning a litigant for bringing a frivolous action, explaining:

We agree with the Supreme Court’s determination granting those branches of the respective motions of the Emerson defendants and the Greenberg Traurig defendants which were pursuant to CPLR 8303-a to impose sanctions against Devereaux. The Emerson defendants and the Greenberg Traurig defendants established that this action was without any reasonable basis in law or fact and that the primary purpose in commencing this action was to harass them. Contrary to Devereaux’s contention, the allegedly defamatory statement made by Burrows was not actionable because it was absolutely privileged as a matter of law, and does not support a finding of a violation of Judiciary Law ยง 487. In addition, a violation of the Rules of Professional Conduct, in itself, does not give rise to a private cause of action against an attorney or law firm. . . .

In opposition to the motions, Devereaux did not even attempt to defend the merits of this action, and, instead, submitted a 48-page affirmation repeating the same arguments that he raised, on behalf of Doscher, in the accounting action related to, among other things, the Supreme Court’s alleged bias and the receiver’s alleged improper conduct. Contrary to Devereaux’s contention, he was afforded a reasonable opportunity to be heard concerning whether his conduct in commencing this action constituted frivolous conduct under CPLR 8303-a.

Each of the Emerson defendants and the Greenberg Traurig defendants, as the “successful parties,” were entitled to a separate award under CPLR 8303-a of up to $10,000. However, under CPLR 8303-a, they each were entitled to an award of attorney’s fees and costs, capped at $10,000, and were not entitled to financial sanctions. Since there was no evidence in the record concerning the attorney’s fees and costs incurred by the Emerson defendants and the Greenberg Traurig defendants in defending this action, the matter is remitted to the Supreme Court, Suffolk County, to determine an appropriate award of costs and attorney’s fees against Devereaux.

(Internal quotations and citations omitted).

Part of being a good litigator is thinking of winning arguments other lawyers miss. However, as this decision shows, courts have little patience for lawyers who cross the line from creative to making frivolous arguments. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client has a question regarding whether an argument has crossed the line from creative to sanctionable.

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Posted in Commercial, Sanctions
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