Part Xlv Motions For Sanctions And Related Costs Motions For Sanctions And Related Costs

• Jurisdiction: New York

Part XLV — Motions for Sanctions
and Related Costs

The Legal Writer continues its series on civil-litigation drafting. In the last two issues of the Journal, we discussed motions for attorney fees. In this issue, we’ll discuss motions for sanctions.

Sanctions: An Overview

Sanctions in civil practice are “penalt[ies] or coercive measure[s] that [result] from failure to comply with a law, rule or order.”²²⁶³ New York state courts have no inherent power to impose sanctions on litigants without an existing court rule or a statute authorizing sanctions.²²⁶⁴ To fill that gap, three rules authorize sanctions: 22 NYCRR Part 130, CPLR 8303-a, and CPLR 3126.

A finding that a party or attorney engaged in frivolous conduct might also justify an award of costs, which are meant to “reimburse[] for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct.”²²⁶⁵ Costs imposed under 22 N.Y.C.R.R. 130-1.1 are different from costs, fees, and disbursements awarded under CPLR Articles 81–85. One major difference between costs under Rule 130-1.1 and costs under the CPLR is that under the former rule, costs may be awarded only for frivolous conduct.

This issue’s column explains how to move for and oppose motions for sanctions and costs related to sanctions.

22 N.Y.C.R.R. 130-1.1

Overview

Part 130 of the Rules of the Chief Administrator of the Courts became effective in 1989.²²⁶⁶ Rule 130-1.1 permits courts to sanction or impose costs on any party or attorney for frivolous conduct in any action or proceeding.²²⁶⁷ Rule 130-1.1 applies to all “frivolous conduct” in all types of civil litigation,²²⁶⁸ except for frivolous conduct in personal-injury suits under CPLR 8303-a,²²⁶⁹ Small Claims Court actions,²²⁷⁰ and some Family Court proceedings.²²⁷¹

Rule 130-1.1 has compensatory and punitive aspects.²²⁷² Under Rule 130-1.1, a court may impose costs to reimburse expenses and attorney fees resulting from the offending party’s or attorney’s frivolous conduct.²²⁷³ The costs go to the party or lawyer harmed by the frivolous conduct.²²⁷⁴ Additionally, or alternatively, sanctions may be awarded as a punitive charge to punish the offending party or attorney who committed the frivolous conduct.²²⁷⁵

Costs and sanctions under Rule 130-1.1 are awarded at the court’s discretion; they aren’t mandatory.²²⁷⁶ A non-offending party may move or cross-move for sanctions.²²⁷⁷ A court may also impose them sua sponte.²²⁷⁸

Although costs are awarded to the prevailing party, an attorney sanctioned under Rule 130-1.1 must pay the sanction to the Lawyers’ Fund for Client Protection,²²⁷⁹ located in Albany. A party who’s not an attorney must pay the sanction to the clerk of the court for transmittal to the New York State Commissioner of Taxation and Finance.²²⁸⁰ For a Rule 130-1.1 sanctions or costs motion to be granted and imposed on a non-moving party, the court must write a decision “setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate.”²²⁸¹

Under Rule 130-1.2, sanctions may not exceed $10,000 “for any single occurrence of frivolous conduct,” but no limit exists on the costs a court may impose on an offending party.²²⁸² Costs are not included in the $10,000 maximum imposable as a sanction. In justifying an award of costs and sanctions under Rule 130-1.1, a court may consider counsel’s age, experience, and income.²²⁸³

For the court to grant a motion for sanctions or costs, the nonmoving party must have a reasonable opportunity to be heard.²²⁸⁴ Courts have interpreted the opportunity to be heard to mean that if a motion for sanctions is made, the return date of the motion is the hearing.²²⁸⁵ A formal testimonial hearing isn’t required for the court to impose sanctions.²²⁸⁶ When a sanctionable offense occurs in front of the judge, no hearing is necessary.²²⁸⁷ When a party requests sanctions in its appellate brief, a formal evidentiary hearing for sanctions is unnecessary. The brief gives the adversary sufficient notice.²²⁸⁸

Moving for Sanctions or Costs Under
22 N.Y.C.R.R. 130-1.1

When moving for sanctions or costs under Rule 130-1.1, ensure that your motion papers conform to CPLR 2214 and 2215. Your notice of motion should include when and where the motion will be heard, the relief demanded, and the grounds for the motion.²²⁸⁹ You must serve the supporting papers on which the motion is based on the nonmoving party at least eight days before the motion is heard.²²⁹⁰ Your motion papers must demonstrate that the opposing party or attorney acted frivolously within the meaning of Part 130.²²⁹¹ You must prove by a preponderance of the evidence that the opposing party or attorney acted frivolously.²²⁹²

When moving for sanctions under Rule 130-1.1, there’s no need in your motion papers to specify the dollar amount you’re seeking.²²⁹³ If you believe that the opposing party’s or attorney’s conduct is particularly egregious, you should detail in your papers the frivolous conduct and request the maximum amount of sanctions.²²⁹⁴

Don’t rely on the court to impose sanctions on an offending party sua sponte. Move for sanctions yourself. A court is unlikely to award sanctions on its own, particularly against an attorney.²²⁹⁵

Don’t move for sanctions under Rule 130-1.1 after judgment has already been entered.²²⁹⁶ After entry of judgment, the court lacks the authority to entertain a “separate proceeding” for sanctions.²²⁹⁷

You may move for sanctions, costs, or both against a pro se litigant who engages in frivolous conduct.²²⁹⁸

If you’re a non-party to the suit but have a “sufficient nexus” to the allegedly frivolous conduct, you may move for sanctions against the opposing party or attorney under Rule 130-1.1.²²⁹⁹ Non-parties may not move for costs against parties to the suit.²³⁰⁰ Costs are awarded only to a “party or counsel to a party” under Rule 130-1.1.²³⁰¹ Additionally, you may not move under Rule 130-1.1 for sanctions or costs against non-parties, such as insurers. The rules don’t provide for sanctions or costs against non-parties.²³⁰²

A court may grant a motion or cross-motion for sanctions under Rule 130-1.1 if there’s a finding of frivolous conduct.²³⁰³ Conduct is frivolous under Rule 130-1.1 if

“[i]t is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law”; ²³⁰⁴

“[i]t is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another”; ²³⁰⁵ or

“[i]t [the party or attorney] asserts material factual statements that are false.” ²³⁰⁶

In evaluating whether the party’s or attorney’s conduct is frivolous, the court considers “the circumstances under which the conduct took place and whether or not the conduct was continued [by the offending counsel or party] when its lack of legal or factual basis was or should have been apparent.”²³⁰⁷ Motions for sanctions under Rule 130-1.1 may be granted even after an action settles.²³⁰⁸ Examples of frivolous conduct include

submitting meritless and harassing filings; ²³⁰⁹

appealing solely to prolong litigation; ²³¹⁰

testifying falsely about material matters during trial and lying during the sanctions hearing; ²³¹¹

pleading inapplicable boilerplate defenses; ²³¹²

making sexist remarks during a deposition; ²³¹³

interfering with a plaintiff’s attempt to photograph an accident scene; ²³¹⁴

suing the wrong corporation and not discontinuing the action after repeated warnings; ²³¹⁵

petitioning frivolously for a guardianship appointment; ²³¹⁶

making an unjustified Rule 130-1.1 motion to harass the other party; ²³¹⁷ and

repeatedly interrupting a witness’s answers, making improper objections, and insulting the judge, clerk, court reporter, or opposing counsel. ²³¹⁸

Just because your adversary advocates zealously doesn’t mean you should move for sanctions. Courts give considerable discretion to attorneys before considering their conduct frivolous.²³¹⁹ Don’t move for sanctions under Rule 130-1.1 if opposing counsel’s conduct constitutes only a lack of professional courtesy²³²⁰ or if opposing counsel refuses to participate in non-court-mandated settlement discussions.²³²¹ Showing up for a conference unprepared doesn’t constitute sanctionable conduct under Rule 130-1.1.²³²² Nor does a refusal to acknowledge personal service of a motion.²³²³ Both you and your adversary should, however, aspire to follow the New York State Standards of Civility.²³²⁴ The Standards encourage all counsel and court personnel to heed the “principles of civility and decorum” and to “treat each other with courtesy, respect and civility.”²³²⁵

Opposing 22 N.Y.C.R.R. 130-1.1 Motions for Sanctions

Opposing a motion for sanctions is similar to opposing any other motion. In accordance with CPLR 2214 or 2215, you must file an affidavit in opposition at least three days before the motion for sanctions is heard.²³²⁶ Your affidavit should contain only facts; legal arguments should be included separately in a memorandum of law.²³²⁷ (For what opposition papers should contain, consult The Legal Writer’s earlier columns.²³²⁸)

If opposing counsel asserts that your claim is without merit in law and therefore frivolous, oppose the motion for sanctions by showing that all your claims have a basis in law or fact or that they constitute a reasonable argument to extend, modify, or overrule existing law.²³²⁹

To oppose motions for sanctions for behavior in court under Rule 130-1.1(c)(2), explain in your opposition papers that your conduct adheres to the “reasonable attorney” standard: “be[ing] well aware of the need for civility, avoid[ing] abusive and discriminatory conduct, conduct[ing] proper depositions, eschew[ing] obstructionist tactics, and generally abid[ing] by the norms of accepted practice.”²³³⁰

22 NYCRR...