Shelley v. Shelley

• Decision Date: 26 March 1999
• Citation: 180 Misc.2d 275,688 N.Y.S.2d 439
• Parties: , 1999 N.Y. Slip Op. 99,175 Gerald J. SHELLEY et al., Plaintiffs, v. Joseph P. SHELLEY, Jr., et al., Defendants.
• Court: New York Supreme Court

Page 439

688 N.Y.S.2d 439

180 Misc.2d 275, 1999 N.Y. Slip Op. 99,175

Gerald J. SHELLEY et al., Plaintiffs, v. Joseph P. SHELLEY, Jr., et al., Defendants.

Supreme Court, Westchester County, New York.

March 26, 1999.

Gregory Menillo, Hartsdale, for plaintiffs.

McMillan Constabile, L.L.P., Larchmont, for defendants.

JOHN P. DiBLASI, J.

The practice of opposing motions with a "knee-jerk" response including a cross-motion for the imposition of sanctions against the moving party or counsel without any basis in law or fact has become an increasingly disturbing aspect of civil litigation. It has been recognized that a motion for sanctions in such circumstances is itself a form of frivolous conduct warranting the imposition of sanctions (see, Patterson v. Balaquiot, 188 A.D.2d 275, 590 N.Y.S.2d 469 [1st Dept.1992]; see also, Southern Blvd. Sound, Inc. v. Felix Storch, Inc., 167 Misc.2d 731, 732, 643 N.Y.S.2d 882 [App.Term 1st Dept.1996] ).

In this case, in response to a motion to dismiss the amended complaint, plaintiffs cross-moved for a default judgment and the imposition of sanctions against defendants. Upon consideration of the papers submitted on those cross-motions, this Court issued a decision and order entered February 17, 1999 (the February 17th decision) which denied both motions in all requests. Additionally, the February 17th decision directed plaintiffs' counsel, Gregory Menillo, Esq. (Menillo), to show cause why sanctions should not be imposed against him for engaging in frivolous motion practice.

This Court has received papers from both Menillo and defendants' counsel in response to its order to show cause. After carefully considering the papers submitted and the controlling legal authorities, the Court concludes that Menillo has engaged in frivolous motion practice and that he should be sanctioned in the amount of one thousand dollars.

PROCEDURAL HISTORY

In this action plaintiffs seek judicial dissolution of various family partnerships, money damages and equitable relief based upon their numerous claims concerning the manner in which the entities were operated. Upon receipt of the original complaint, defendants moved to dismiss several of plaintiffs' causes of action. By cross- Plaintiffs served an amended complaint upon defendants' counsel on November 25, 1998. In lieu of answering, on December 18, 1998, defendants filed a motion for partial dismissal of the amended complaint. As their "knee-jerk" response, plaintiffs cross-moved for a default judgment and an award of sanctions (the second cross-motion).

motion, plaintiffs requested leave to amend their complaint. In a decision and order entered November 9, 1998, Justice Louis A. Barone of this court granted leave to amend the complaint and denied the dismissal motion. Justice Barone directed that the amended complaint be served within twenty days of receipt of his decision and order with notice of entry.

On the first branch of the second cross-motion, it was argued that defendants were in default for failing to answer the original complaint. Specifically, plaintiffs asserted that CPLR 3211(f) required defendants to answer the original complaint within ten days after service of Justice Barone's decision and order. In view of the absence of any such answer, plaintiffs maintained that a default judgment should be entered.

The second branch of the second cross-motion was a request that this Court sanction defendants for moving to dismiss the amended complaint and for failing to answer either the original complaint or the amended complaint. As related to their contention that the filing of the dismissal motion before this Court was frivolous conduct, plaintiffs relied upon the "single motion rule" of CPLR 3211(e). In particular, they argued that CPLR 3211(e) permits only one dismissal motion in an action, as a consequence of which defendants were barred from moving to dismiss the amended complaint after seeking dismissal of the original complaint. Concerning the second ground for sanctions, plaintiffs asserted that defendants' failure to answer either the original or the amended complaint demonstrated that they were "unnecessarily and unreasonably seeking to delay the progress of the instant litigation" (Menillo Affirm. in Support of Cross-motion, p. 7).

Based upon an analysis of the issues in preparation of the February 17th decision, the Court concluded that both branches of the second cross-motion were frivolous. Upon that determination, the Court directed that Menillo show cause why he should not be sanctioned for engaging in frivolous motion practice.

FRIVOLOUS CONDUCT

Part 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR Part 130) authorizes Supreme Court, as well as other courts, to impose costs and sanctions upon an attorney or party who has engaged in frivolous conduct. Insofar as is relevant hereto, 22 NYCRR § 130-1.1(c) provides that "conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; [or] (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another".

In response to the order to show cause, Menillo essentially restates the position taken by him on the second cross-motion. Thus, he continues to maintain that defendants were required to answer the original complaint because there was a "window" of time between the end of the ten-day answering period under CPLR 3211(f) and the end of the twenty-day period established by Justice Barone for the service of the amended complaint. Similarly, he repeats the argument that defendants were not permitted to move for dismissal of the amended complaint because they had already sought such relief as to the original complaint. Alternatively, he contends that the issues involved on the second cross-motion were subject to differing views and were not the subject of established law, so that no finding of frivolous conduct on his part is warranted. Finally, he claims that his conduct does not warrant sanctions in As relates to the default judgment application, the Court is convinced that such a request, founded upon defendants' failure to answer the original complaint, is not merely lacking in merit, but is entirely frivolous. At the time the second cross-motion was filed by Menillo, he was well aware that he had successfully moved in behalf of plaintiffs for leave to amend the original complaint. That relief had been granted by Justice Barone, who also set a specific time by which the amended complaint was required to be served. In furtherance of his clients' position, Menillo prepared an amended complaint, which was served upon his adversary on November 25, 1998, within the twenty-day period set by Justice Barone. Thus, it cannot be credibly disputed by Menillo that from the time the application to amend the complaint was made, it was plaintiffs' intention to serve that amended pleading.

any event because he was acting in good faith in the representation of his clients. None of these arguments is persuasive.

Although Menillo continues to argue against the proposition, it is settled law that an amended complaint supersedes the original complaint and becomes the only complaint in the action (Schoenborn v. Kinderhill Corp., 98 A.D.2d 831, 832, 470 N.Y.S.2d 495 [3rd Dept.1983] ). In view of that established principle, the Court concludes that defendants' obligation to serve an answer to the original complaint ceased when they were informed that plaintiffs had leave to serve an amended complaint. Indeed, no purpose would have been achieved by the service of that answer, since within days thereafter both the original complaint and the original answer would no longer be part of the case, and the action would have "proceed[ed] as though the original pleading[s] had never been served" (see, Hawley v. Travelers Indemnity Company, 90 A.D.2d 684, 455 N.Y.S.2d 884 [4th Dept.1982] ).

In obvious recognition of the lack of foundation for his position, Menillo asserts that an answer to the original complaint was required because there was a short "window" of time between the end of the ten-day period for service of the answer to that complaint and the date by which the amended complaint was required to be served, and because plaintiffs could "stand" upon their original complaint notwithstanding the granting of leave to amend that pleading. Specifically, he states that:

While this may appear to be an academic point, in the instant case this window is of substantive significance. The plaintiffs were granted leave to amend. Leave to amend is exactly that: the right, at a parties to (sic) option, to serve an amended pleading. Leave to amend is not a directive from the court to do so. The plaintiffs had the right to decide that they did not wish to amend and instead choose to stand on their original pleading. In the instant case this was of particular significance. (Menillo Affirm., par. 21).

This statement, if believed by Menillo, smacks of just the type of litigation "game playing" that the sanction rules were designed to eradicate (see, Kernisan v. Taylor, 171 A.D.2d 869, 870, 567 N.Y.S.2d 794 [Purpose of sanction rules "is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics"] ).

It cannot be doubted that on the cross-motion before Justice Barone, plaintiffs, through Menillo, represented to that court that they wished to serve and file an amended complaint to address certain defects in that pleading or to insert additional matters which they believed should be contained therein. Acting upon that representation, Justice Barone granted plaintiffs leave to serve an amended complaint. Given those circumstances, both Justice Barone and defendants were entitled to rely upon the fact that the original complaint was being abandoned by p...