Shaw, Licitra, Gulotta, Esernio & Schwartz PC v. Hahn, 039977/06
Decided: March 20, 2007
Judge Andrew M. Engel
The Defendant moves for an order dismissing the Complaint herein, pursuant to CPLR §3211(u)(4), imposing sanctions upon the Plaintiff, pursuant to DR 7-102, DR 7-104, 22 N.Y.C.R.R. §130-1, and 22 N.Y.C.R.R. §130-1.1, prohibiting the Plaintiff from filling my further legal actions against the Defendant and awarding the Defendant damages.
The Defendant seeks dismissal of the present action, alleging that there is a prior action pending for the same relief, between these parties, in the Supreme Court of Nassau County. The Defendant submits a copy of the Summons and Complaint in such action, entitled, Shaw, Licitra, Gulotta, Esernio & Schwartz, P.C. v. Christopher Hahn, hearing Index No. 256/05, (the "Supreme Court Action"). The Plaintiff neither opposes this motion not denies that the action before this court seeks the same relief as is sought in the pending Supreme Court Action. Additionally, a comparison of the two (2) Complaints confirms that the relief sought in this action is contained within the relief sought in the Supreme Court Action.
Accordingly, the Defendants’ motion to dismiss the Complaint, pursuant to CPLR §3211(a)(4), is granted; and, the Complaint is dismissed.
The Defendant seeks the imposition of sanctions against the plaintiff for the commencement of this action, alleging that same was commenced for the sole purpose of harassing the Defendant. As evidence of such harassment, the Defendant not only points to the fact that the Plaintiff, a law firm representing itself, knew there was a prior action pending at the time it commenced this action, but alleges that this is the second time the Plaintiff has commenced the identical action in this court.
The Defendant alleges that in January 2006 the Plaintiff commenced an action against the Defendant, in this court, which was identical to the action presently before the court. A copy of the Summons and Complaint in that action (the "Second Action"), dated January 18,2006, is provided to the court. A comparison of the Summons and Complaint in the Second Action and the Summons and Complaint in the action presently before the court reveals that they are identical. This is not disputed by the Plaintiff.
The Defendant further alleges that following service of the Second Action counsel for the Defendant contacted Plaintiff which agreed to withdraw the Second Action. According to counsel for the Defendant, however, he has never received confirmation that the Second Action was withdrawn. Defendant does not however, allege that the Second Action is actually still pending.
The Official Compilation of Codes, Rules and Regulations of the State of New York, 22 N.Y.C.R.R. §130-1.1, provides, in pertinent part:
(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs. in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct, as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial Sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, Which shall he payable as provided in section 130-13 of this Subpart. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act.
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either on attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a Partnership, firm, corporation, government agency, prosecutor’s office, legal aid society or public defender’s office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.