Muldoon, Getz & Reston

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Sanctions Imposed on Appeal
Gary Muldoon
Muldoon & Getz
Rochester, NY
(585) 262-5130


Appellate courts have authority to sanction for frivolous conduct that occurs in that court.

Appellate court rules specifically address Part 130's application. 22 NYCRR §§ 670.2(g),(h), 670.10.3(f) (Second Dept); 1000.16 (Fourth Dept); 500.1 (Court of Appeals).

Role of counsel with frivolous litigation

In a matrimonial case that was twice reviewed on appeal, the First Department on the initial appeal had directed the trial court to consider sanctions. Heilbut v Heilbut, 13 AD3d 199, 786 NYS2d 481 (1st Dept 2004). Awarding $10,000 costs and $10,000 sanctions against the former husband, and $2,500 sanctions against the attorney, were proper in a post-divorce appeal where litigation had been ongoing for 14 years.

Commenting on the attorney’s role, the First Department stated: “[His] submissions persuade us that he failed to analyze his client’s case in the context of the entire record. Such an analysis would have disclosed that the appeal was improper and should not be prosecuted. When a client asks an attorney to defend or prosecute a claim, a motion or an appeal, or to engage in any other form of representation plainly devoid of merit and undertaken for no reason other than to lead a vindictive campaign to harass, delay or obfuscate, that attorney’s obligation is to dissuade the client from continuing that course of action. If the client persists in such an ethically and otherwise improper direction, the attorney should refuse to be so engaged.”

The Appellate Division awarded additional costs to plaintiff for actual expenses on the current appeal and imposed additional sanctions of $10,000. The Supreme Court clerk and Appellate Division clerk were directed to not accept further filings from the defendant without prior leave from the respective courts. Heilbut v Heilbut, 18 AD3d 1, 792 NYS2d 419 (1st Dept 2005). See also, Yenom Corp v 155 Wooster Street, Inc, 33 AD3d 67, 818 NYS2d 210 (1st Dept 2006).

In another divorce appeal, the Second Department stated: “The purpose of an appellate brief is to assist, not mislead the court. Counsel who mischaracterize events, fabricate issues and rely upon matter dehors the record act in direct derogation of their professional obligations.” Miller v Dugan, 27 AD3d 429, 810 NYS2d 517 (2d Dept 2006) (citations and internal quotations omitted). Sanctions against appellant and her appellate counsel were possible, with the attorneys for both sides directed to submit papers on the issues of sanctions or costs.

Vituperative advocacy

In a custody appeal, the appellant’s brief described the respondent (misfit, miscreant, lazy lout and psychopath) and suggested without any basis that respondent was a felon and had paid an expert paid for a biased report; and characterized the trial judge’s opinion as laughable and irrational. The Second Department directed the parties to submit papers whether the content and manner of prosecuting this appeal by the mother and her attorney should be found frivolous with sanctions or costs awarded. Wecker v D’Ambrosio, 6 AD3d 452, 773 NYS2d 891 (2d Dept 2004).

Notifying court of settlement

Failing to notify an appellate court of settlement of the issues on the appeal can result in sanctions. 22 NYCRR § 670.2(g) (Second Dept); see also § 500.6 (attorneys are required to inform the Court of Appeals clerk’s office of all developments affecting appeals, including contemplated and actual settlements). See Gerulaitis v Recreational Concepts Inc, 295 AD2d 563, 744 NYS2d 741 (2d Dept 2002).

A sanction was imposed against a respondent’s attorney for delaying resolution of the appeal, obtaining two extensions to file a brief while withholding information that, during the pendency of the appeal, the settlement of a class action involving identical claims had bound plaintiff as a class member. A $5,000 sanction was imposed. Naposki v First National Bank of Atlanta, 18 AD3d 835, 798 NYS2d 62 (2d Dept 2005).

Necessity of citing caselaw

Costs (fees) were awarded to opposing appellate counsel where the briefs, 3½ and 4½ pages, were devoid of relevant discussion and failed to cite contrary caselaw. Nachbaur v American Transit Ins. Co., 300 AD2d 74, 752 NYS2d 605 (1st Dept 2002). Brevity was apparently not a plus in this case. See also, La Cucina Mary Ann, Inc. v State Liquor Authority, 150 AD2d 450, 541 NYS2d 220 (1st Dept 1989) (obligation to cite contrary case authority); Lebovits, “Legal-Writing Ethics -- Part I,” NYS Bar Journal, October 2005, p. 64.

Intentional harassment and delay

In a declaratory judgment action brought in an estate case, which was dismissed, the Appellate Division termed the lawsuit against an executor for indemnification to be frivolous and intended for the purpose of harassment and delay: it was an attempt to deter judicial inquiry into the circumstances of the estate. The case was remanded for a determination of the reasonable amount of fees incurred in responding to the appeal. Skolnick v Goldberg, 297 AD3d 18, 746 NYS2d 296 (1st Dept 2002).

An appealing former husband (an attorney) filed six separate appeals in the divorce action, the last four of which raised no meritorious issues. The former husband’s appeal involved a motion identical to one previously denied, and husband’s repeated use of interrogatories was vexatious. Sanctions of $7,500 were imposed on the defendant. Fox v Fox, 309 AD2d 1056, 765 NYS2d 906 (3d Dept 2003).

Improper record on appeal

Sanctions were imposed on attorneys for adding documents to the record on appeal that were not before the lower court, and unilaterally amending the caption of the action so as to press an appellate argument that the trial judge should be disqualified. The conduct violated all three grounds for sanctions (without merit in law; primarily for delay; false statements). One of appellant’s attorneys was sanctioned $2,000, with $250 upon the other, who recognized the seriousness of the issue and accepted responsibility. In contrast, the first attorney’s submission “contains a barrage of accusations of bias” by the judge, defending the attorney’s actions, and no remorse. DeRosa v Chase Manhattan Mortgage Corp., 15 AD3d 249, 793 NYS2d 1 (1st Dept 2005).

© 2008 by Gary Muldoon