Southern Blvd. Sound, Inc. v. Felix Storch, Inc.
| Decision Date | 26 February 1996 |
| Citation | 167 Misc.2d 731,643 N.Y.S.2d 882 |
| Parties | SOUTHERN BOULEVARD SOUND, INC., et al., Respondents, v. FELIX STORCH, INC., Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Term |
Harry Block, New York City (Robert D. Block, of counsel), for appellant.
Joseph I. Mezrahi, Brooklyn, for respondents.
Order entered June 7, 1995 (Richard F. Braun, J.) modified by vacating the award of sanctions and, as modified affirmed without costs.
The action, commenced by service of a summons and indorsed complaint, is founded upon grave allegations that defendants "fraudulently" obtained default judgments against plaintiffs in several prior actions, with knowledge that those proceedings "were fraught with procedural irregularities and lacking in personal jurisdiction". Prior to answering, the corporate defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action and, alleging the absence of any justification "in law or fact" for maintenance of the suit, additionally sought to impose rule 130 (22 NYCRR 130-1.1) sanctions against plaintiffs.
Civil Court properly denied the defendant's pre-answer dismissal motion, since the summary statement of the cause of action contained in the indorsed complaint adequately apprised each of the defendants of the "nature and substance" of plaintiffs' claim (CCA 902[a][1]; 903; see, Siegel, Practice Commentaries, McKinney's Cons.Laws of NY, Book 29A, CCA 903, at 176-180). The court erred, however, in going further and, sua sponte, awarding rule 130 sanctions against the corporate defendant and its counsel. While in appropriate circumstances a baseless request for sanctions itself may constitute frivolous conduct within the meaning of rule 130 (see, Patterson v. Balaquiot, 188 A.D.2d 275, 590 N.Y.S.2d 469), it has not been shown in this case that the sanctions request accompanying defendant's dismissal motion was frivolous. The thin record so far developed, limited in scope to the narrow issue of the facial sufficiency of the short-form complaint, provides no basis to assess either the substantive merits of plaintiffs' stated cause of action or the bona fides of defendant's sanctions request in response thereto.
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...Sound v. Felix Storch Inc., 165 Misc.2d 341, 629 N.Y.S.2d 635 [Civ. Ct., N.Y. County 1995], mod. on other grounds 167 Misc.2d 731, 643 N.Y.S.2d 882 [App. Term, 1st Dept. 1996] that “Judiciary Law § 487(1) does not apply to acts committed in courts of States other than the State of New York”......
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...proceedings 'were fraught with procedural irregularities and lacking personal jurisdiction,' " Southern Boulevard Sound, Inc. v. Felix Storch, Inc., supra, 167 Misc.2d at 732, 643 N.Y.S.2d 882. See also In Rowell v. Gould, Inc., 124 A.D.2d 995, 508 N.Y.S.2d 794 (4th Dept .1986) (notice stat......
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...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-move......
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Does N.Y. Judiciary Law §487 Apply To Arbitrations?
...in favor of the accused."); S. Blvd. Sound, Inc. v. Felix Storch, Inc., 165 Misc. 2d 341, 344 (N.Y. Civ. Ct. 1995), aff'd as modified, 167 Misc. 2d 731 (App. Term 1st Dept. 1996) (Section 487 should be strictly construed owing to criminal component); see also City of New York v. Verizon New......