By Rachel Morgenstern
22 NYCRR § 130.1–1, well known among New York litigators, provides for the award of costs and sanctions for frivolous conduct in litigation. In far too many commercial cases, practitioners make motions under this rule not for legitimate reasons, but in order to intimidate, harass or obtain a strategic advantage.
In 1999, a Westchester County court noted that the practice of opposing a motion with a cross-motion for sanctions had become a “knee-jerk” response, and an “increasingly disturbing aspect of civil litigation.” Shelley v. Shelley, 180 Misc. 2d 275, 276-277. Nearly ten years earlier, a New York County court offered a similar sentiment, stating:
“This Court, and others, are losing patience with those attorneys who make motions for sanctions almost as a matter of course. Such conduct cannot be condoned, for it may have a chilling effect on some litigants, and leads to needless expenditure of time and money by litigants, not to mention the Court’s time.”
Chinn v. Plastino, 206 N.Y.L.J. 80 (NY Civ Ct, New York County 1991).
It’s safe to say that recent years have not been witness to significant improvements. But neither attorneys nor courts are without recourse when faced with such conduct. Section 130-1.1(c) provides a remedy insofar as it includes within the definition of sanctionable conduct “the making of a frivolous motion for costs or sanctions.”
Patterson v. Balaquiot is a case about dueling sanctions motions that is often cited. In this 1992 decision, the First Department deemed a motion for sanctions frivolous and awarded $250 to the cross-movant. (188 A.D.2d 275 (1st Dept 1992)).
A few years later, a Civil Court in New York County, similarly faced with dueling sanctions motions, made an example of counsel for using Rule 130 as an “intimidation device,” finding no basis in law or fact for his request for sanctions. S. Blvd. Sound v. Felix Storch, Inc., 165 Misc. 2d. 341, 342-343 (Civ Ct, New York County 1995). In that instance, the Court awarded $50 to each plaintiff.
While an award of $50 is hardly sufficient to deter frivolous motion practice in today’s climate, an award of $10,000 for each single occurrence might suffice. That is the statutory limit for sanctions awarded pursuant to Rule 130, though as one court noted, “costs are not so constrained and may include attorneys’ fees and actual expenses.” D.I. v S.I., 2008 N.Y. Misc. LEXIS 6033, at *9 (Sup Ct., Westchester County Aug. 4, 2008, No. 14749/06). And, attorneys may be held personally responsible to pay such sanctions and costs, at least where the frivolous act at issue is directly attributable to counsel rather than the client.
Given the potential consequences, attorneys considering a sanctions motion for strategic purposes should heed the recent warning of a Bronx County court: “a request for sanctions pursuant to Part 130 is not something that should be loosely alleged.” Rivera v. Bhuiyan, 64 Misc. 3d 1235[A] at *3 (Sup. Ct. Bronx Cty. 2019).