Bozer v. Higgins

Balio and Callahan, JJ.

(dissenting in part). We would affirm the judgment of Supreme Court (Bozer v Higgins, 157 Misc 2d 160).

Petitioner, an attorney admitted to practice in this State, commenced this CPLR article 78 proceeding against the Sheriff of the County of Erie and the Office of Court Administration (OCA) seeking a declaration that the searches of persons entering the courthouse were unconstitutional. The magnetometer searches were instituted by OCA as a security measure to intercept weapons being brought into the courthouse. The Sheriff’s Department conducted the searches pursuant to a contract with OCA. Petitioner alleged that, on August 20, 1992, he went to the Erie County Courthouse to attend a court proceeding and was denied free admittance to the courthouse when he objected to a deputy sheriff searching his briefcase. Petitioner sought to have the searches of persons entering the courthouse declared unconstitutional.

The majority agrees that Supreme Court properly determined that OCA has the authority to implement security measures at court buildings (Legal Aid Socy. v Crosson, 784 F Supp 1127). The majority also agrees that courthouse searches have been held to be reasonable under the Federal and State Constitutions. Furthermore, petitioner as an attorney is charged with the knowledge that the courts have determined that such searches are constitutional (see, People v Rincon, 177 AD2d 125, lv denied 79 NY2d 1053). Therefore, it is frivolous, under the circumstances of this case, for petitioner to commence this proceeding against the Sheriff for performing assigned duties and against OCA for implementing security measures at court buildings.

A court, in its discretion, may award costs, including reasonable attorney’s fees, to a party in a civil action or proceeding before the court, and may also impose financial sanctions upon any party or attorney who engages in frivolous conduct (22 NYCRR 130-1.1). Conduct is considered "frivolous” if "it is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1 [c] [1]). We agree with Supreme Court’s assessment that petitioner’s *982article 78 proceeding is frivolous. Given the lack of factual basis for petitioner’s claim, as well as the quality of legal argument presented by petitioner and his law firm, Supreme Court did not abuse its discretion in imposing financial sanctions upon petitioner and his law firm for subjecting respondents to this frivolous litigation (see, 22 NYCRR 130-1.1; Matter of Minister of Refm. Prot. Dutch Church v 198 Broadway, 76 NY2d 411; Board of Educ. v Allen, 192 AD2d 1099, lv dismissed 82 NY2d 846). (Appeal from Judgment of Supreme Court, Erie County, Whelan, J.—Article 78.) Present—Green, J. P., Pine, Balio, Callahan and Boehm, JJ. [See, 157 Misc 2d 160.]