MATTER OF FRANK M. v. SIOBAHN N.

• Decision Date: 20 January 2000
• Citation: 268 A.D.2d 808,702 N.Y.S.2d 409
• Parties: In the Matter of FRANK M., Petitioner,<BR>v.<BR>SIOBAHN N. et al., Respondents.<BR>SUSAN CROWE, Appellant.
• Court: New York Supreme Court — Appellate Division

268 A.D.2d 808

702 N.Y.S.2d 409

In the Matter of FRANK M., Petitioner,

v.SIOBAHN N. et al., Respondents.

SUSAN CROWE, Appellant.

Mugglin, J.

Decided January 20, 2000.

Crew III, J. P., Spain and Graffeo, JJ., concur.

Mugglin, J.

In a prior proceeding, petitioner obtained an order of filiation prior to the birth of his child. Concerned that respondent Siobahn N. (hereinafter respondent), the mother, would place the child for adoption, petitioner commenced this custody proceeding by order to show cause and petition shortly after the child was born. The order to show cause granted temporary custody to petitioner. Upon a motion by respondent's attorney and after a hearing, Family Court found that petitioner's attorney engaged in frivolous conduct by knowingly requesting and receiving ex parte relief without personally ascertaining that the court was aware that her adversary was present in the courthouse and available for conference and argument on the requested relief, thereby wasting the court's time and the time of all counsel. The court imposed costs of $50 and a sanction of $50, resulting in this appeal by petitioner's attorney.

An attorney may be sanctioned only if there is a statute or a court rule authorizing the sanction (see, Matter of Premo v Breslin, 89 NY2d 995, 997). Sanctions for frivolous conduct are authorized by 22 NYCRR 130-1.1, but the only definition of frivolous conduct arguably applicable to this case is conduct "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (22 NYCRR 130-1.1 [c] [2]). Although Family Court was apparently of the view that the proceeding was prolonged by the conduct of petitioner's attorney, the court expressly found that the custody issue "was resolved fairly quickly and easily". More importantly, the court made no finding that the attorney's primary purpose was to prolong the proceeding, or to harass or maliciously injure another. Nor does the evidence support such a finding.

It appears that counsel sought prompt judicial intervention by way of an order to show cause for the primary purpose of protecting her client's parental rights, and it is not clear that she had any reason to believe that the Family Court was unaware of the presence of respondent's attorney. Court personnel, who were aware of the presence of respondent's attorney, inexplicably failed to pass this information along to the court. At most, the conduct of petitioner's counsel reflects a lack of professional courtesy but it does not rise to the level of frivolous conduct (see, Brocklebank v City of Lockport, 198 AD2d 906). While we share in Family Court's obvious displeasure, we are constrained by the language of 22 NYCRR 130-1.1 to conclude that the imposition of sanctions, under the circumstances of this case, was an abuse of discretion.

Carpinello, J. (dissenting).

Because I believe that Family Court neither abused its discretion nor exceeded its statutory authority in imposing nominal costs and a nominal sanction against petitioner's counsel, Susan Crowe, I am compelled to dissent. The exigent circumstances surrounding the questioned custody of the newborn child of petitioner and respondent Siobahn N. (hereinafter respondent) are apparent. Moreover, the propriety of Crowe's decision to proceed by order to show cause is not in dispute. Rather, it is Crowe's conduct, and that of her law partner, after the filing of the application (ostensibly ex parte) which in my view constitutes frivolous conduct.

The record reveals that Crowe and Andrew Beatty, respondent's attorney, had a telephone conversation on the day the application was filed which ended with Crowe advising Beatty that she would be filing an application with Family Court that day to prevent the child's placement for adoption. Accordingly, both attorneys hastily proceeded to court. Crowe filed her proposed order to show cause (and attached custody petition) with court personnel assuming that the court was aware of Beatty's presence in the courthouse because the...