Gabrelian v. Gabrelian

• Decision Date: 20 May 1985
• Citation: 108 A.D.2d 445,489 N.Y.S.2d 914
• Parties: Lillian GABRELIAN, Respondent, v. Gabriel GABRELIAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 914

489 N.Y.S.2d 914

108 A.D.2d 445

Lillian GABRELIAN, Respondent, v. Gabriel GABRELIAN, Appellant.

Supreme Court, Appellate Division Second Department.

May 20, 1985.

Gabriel Gabrelian, pro se.

Before LAZER, J.P., and BRACKEN, RUBIN and EIBER, JJ.

BRACKEN, Justice.

While inherent power resides in the courts of record in this State to impose financial sanctions upon parties or their attorneys who engage in abusive litigation practices, based upon the circumstances of the case before us we conclude that Special Term's exercise of its inherent power constituted an improvident exercise of discretion and, therefore, the order, insofar as it imposed such a sanction, must be reversed.

For purposes of this appeal, the pertinent facts may be simply stated. Plaintiff wife was granted a judgment of divorce in 1975 on the ground of cruel and inhuman treatment by defendant. More than eight years after entry of that judgment, defendant moved pro se to punish plaintiff for contempt for having failed to abide by the provisions of the judgment directing the parties to equally divide their personal property after the sale of the marital residence. Special Term denied the motion and stated in its decision that there had been no showing of contumacious conduct on the part of plaintiff wife. Moreover, the court found that the very issues which defendant had attempted to raise in his pro se motion had been determined over one year earlier after a hearing before another Justice of the court, and two District Court actions by defendant seeking identical or related relief had also been dismissed. Special Term, noting that defendant had failed to appeal adverse determinations but, rather, had continued to make "harassing, vexatious motions" against his former wife, imposed a fine upon defendant in the sum of $500 payable to plaintiff within 10 days and further enjoined defendant from commencing any further proceedings against plaintiff until the fine and certain other previously awarded sums had been paid.

Our determination of the propriety of this fine begins with a brief review of the various sources of authority permitting a court to direct a party or its attorney to pay a sum of money.

Pursuant to CPLR articles 81 and 82 a court may, in its discretion, award costs in an action, on a motion or on an appeal. Costs generally are defined as financial allowances authorized by statute to reimburse the successful party for expenses incurred in litigation (see generally, 24 Carmody Wait 2d, N.Y.Prac. § 148:2, pp. 519-520). However, the amount of costs which may be awarded are strictly limited by statute to fixed amounts bearing no relationship to the amount actually expended by the party in successfully asserting its rights in court. For example, in the instant case, involving a motion to punish for contempt, the Supreme Court, Suffolk County, could have awarded costs only in an amount not exceeding $20 (CPLR 8202), plus disbursements representing the reasonable and necessary expenses of the motion (CPLR 8301). Because the power to award costs is derived solely from statute (see generally, 24 Carmody-Wait 2d, N.Y.Prac., § 148:4, pp. 521-524), it is clear that the imposition of a $500 fine in this case by Special Term did not constitute an award of costs and disbursements within the meaning of the pertinent provisions of the CPLR.

A second source of authority for the imposition of financial sanctions is the contempt power. The power to punish for criminal contempt is strictly circumscribed and clearly would not apply to defendant's conduct in the within case (Judiciary Law § 750). The power to punish for civil contempt, however, is much broader and includes the power to punish a party for any "abuse of a mandate or proceeding of the court" (Judiciary Law § 753). Where a party is adjudged to be in civil contempt, a fine sufficient to indemnify the aggrieved party for the loss or injury occasioned by the contempt may be imposed or, where such actual loss or injury is not shown, a fine not exceeding the amount of plaintiff's actual expenses, plus $250, may be imposed (Judiciary Law § 773). It is clear, however, that in this case the imposition of a $500 fine by Special Term was not made upon an adjudication of civil contempt in conformity with the statutory provisions pertaining thereto (Judiciary Law § 753, et seq.).

We further conclude that the fine imposed herein cannot be justified as a valid award of attorney's fees. It is generally recognized that counsel fees are merely incidents of litigation which are not compensable or recoverable in the absence of specific statutory authority or some contractual obligation (City of Buffalo v. Clement Co., 28 N.Y.2d 241, 262-263, 321 N.Y.S.2d 345, 269 N.E.2d 895; Matter of Low, 208 N.Y. 25, 31, 101 N.E. 706; Perez v. One Clark Street Housing Corp., App.Div., 485 N.Y.S.2d 346; Klein v. Sharp, 41 A.D.2d 926, 343 N.Y.S.2d 1014). Under the Domestic Relations Law, counsel fees are recoverable in a contempt proceeding to enforce a provision of a divorce judgment requiring the payment of a sum of money (Domestic Relations Law §§ 238, 245). However, in the within matter defendant sought to punish plaintiff for her alleged failure to have distributed certain items of personal property and not for any failure to abide by a provision of the divorce judgment requiring payment of a sum of money. Thus, contempt did not lie as a proper enforcement remedy herein, and the statutory provision for awarding counsel fees was therefore inapplicable. There being no other statute colorably authorizing an award of counsel fees in this case, it is clear that the within fine did not constitute a valid award for such fees.

Under CPLR 5015 a court may grant relief from a judgment or order "upon such terms as may be just" (CPLR 5015). Also, under CPLR 2004, a court may extend the time fixed by statute for doing any action "upon such terms as may be just". Although these statutes do not expressly provide for the imposition of money sanctions, it is now well settled that such sanctions may be imposed, for example, as a condition for relieving a party of a default (CPLR 5015 Piazza v. Hastings Assoc., 103 A.D.2d 738, 477 N.Y.S.2d 596; Mineroff v. R.H. Macy's & Co., 97 A.D.2d 535, 467 N.Y.S.2d 895; Bissaccia v. Aknin, 54 A.D.2d 681, 387 N.Y.S.2d 264; Siegel v. Tamarack Lodge Hotel, 46 A.D.2d 684, 360 N.Y.S.2d 78; Schickler v. Seifert, 45 A.D.2d 816, 357 N.Y.S.2d 225; Moscatiello v. Savarese, 42 A.D.2d 519, 344 N.Y.S.2d 285; Moran v. Rynar, 39 A.D.2d 718, 332 N.Y.S.2d 138; Springer v. Marangio, 38 A.D.2d 852, 330 N.Y.S.2d 100).

In addition, it is now well settled that monetary sanctions may be imposed pursuant to CPLR 3126 as a penalty for refusal to comply with an order of discovery or a refusal to disclose (see, e.g., Renford v. Lizardo, 104 A.D.2d 717, 480 N.Y.S.2d 655; Thadford Realty Co. v. L.V. Income Props. Corp., 102 A.D.2d 823, 476 N.Y.S.2d 348; Everin v. Greyhound Elevator Corp., 97 A.D.2d 832, 469 N.Y.S.2d 14; Jordan v. Huntington Hosp. Assn., 40 A.D.2d 870, 337 N.Y.S.2d 943). Although this statute does not expressly provide for financial penalties, it does indicate that the list of specific sanctions contained therein (i.e., resolution of issues against the refusing party, preclusion, staying proceedings, striking pleadings, dismissing actions, and rendering default judgments) is not exclusive (see generally 3A Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3126:14; Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3126:11, pp. 653-654), and the court may make such orders "as are just" in further compliance (CPLR 3126).

However, none of the foregoing statutes constitute authority for the fine imposed by Special Term in this case. In fact, there appears to be no statute, short of contempt, which even colorably empowers a court to impose a financial assessment upon a party or its attorney for general abuse of the judicial process, such as repeated filings of frivolous motions. Nevertheless, we conclude that such power is derived from the so-called "inherent powers doctrine".

It is our view that courts of record (Judiciary Law § 2) are vested with inherent powers, which are neither derived from nor dependent upon express statutory authority, and which permit such courts to do all things reasonably necessary for the administration of justice within the scope of their jurisdiction (Langan v. First Trust & Deposit Co., 270 App.Div. 700, 62 N.Y.S.2d 440, affd. 296 N.Y. 1014, 73 N.E.2d 723). ¹ The so-called "inherent powers doctrine" has been aptly described as follows:

"Under the inherent powers doctrine a court has all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. These powers are inherent in the sense that they exist because the court exists; the court is, therefore, it has the powers reasonably required to act as an efficient court. Inherent judicial powers derive not from legislative grant or specific constitutional provision, but from the fact it is a court which has been created, and to be a court requires certain incidental powers in the nature of things. (Carrigan, Inherent Powers of the Courts, National College of the State Judiciary, Reno, Nevada (Matter of People v. Little, 89 Misc.2d 742, 745, 392 N.Y.S.2d 831, affd. 60 A.D.2d 797, 400 N.Y.S.2d 615).

A court's inherent powers are derived from the very fact that the court has been created and charged with certain duties and responsibilities; they are those powers which a court may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its own independence and integrity; such powers have been recognized since the days of the Inns of Court in common law English jurisprudence (Eichelberger v. Eichelberger, 582 S.W.2d 395,...