On June 21, 2018, the First Department issued a decision in Matter of Del Monaco v. Diamond, 2018 NY Slip Op. 04652, sanctioning an appellant for making a frivolous argument, explaining:
Respondent’s argument that despite the court’s order holding him liable and directing him to repay the misappropriated funds, petitioner was responsible for enforcing the judgment by levying on the jointly-held companies is without merit on its face. Nor did the court’s mandates impinge upon respondent’s right to arbitration of corporate disputes, as it is hornbook law that the civil contempt order vindicated petitioner’s rights under the court’s judgments and the restraining notices.
The broad pattern of respondent’s conduct, evidenced by the record, amply shows his disregard of the court’s authority. Even though respondent concedes to wilfully violating the court’s mandates, his appellate brief argues – with no support in the record – that petitioner’s motive in seeking contempt penalties was improper. Under these circumstances, in the exercise of discretion, we, nostra sponte, impose frivolous appeal sanctions against respondent of $10,000, payable to the Clerk of Court for transmittal to the Commissioner of Taxation and Finance.
(Internal 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. It is unusual for a party to be sanctioned like this, and we can only imagine that here the line was crossed by a significant margin. Contact Schlam Stone & Dolan partner John Lundin at email@example.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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