Bogan v. Royal Realty Co.

—Order, Supreme Court, New York County (William J. Davis, J.), entered March 10, 1994, which granted defendant’s motion to vacate, upon the ground of fraud and misrepresentation, a judgment entered against it by plaintiff on July 6, 1990, and imposed sanctions against plaintiff-appellant in the amount of $5,000 and against plaintiff’s attorney, appellant Barry S. Rubin, Esq., in the amount of $5,000, the latter amount payable to defendant’s attorneys, unanimously modified, on the law, to the extent of vacating the sanction imposed upon appellant Rubin and remanding the matter for appropriate action in accordance with 22 NYCRR part 130. As so modified, the order is otherwise affirmed, without costs.

While a court may, in its discretion, award costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees resulting from frivolous conduct as defined in 22 NYCRR 130-1.1 (c) to any party or attorney in a civil action and, in addition or in lieu of awarding costs, may impose financial sanctions upon any party or attorney who engages in such frivolous conduct (22 NYCRR 130-1.1 [a]), the IAS Court should not have imposed such sanctions against appellant without affording him proper notice and "a reasonable opportunity to be heard” (22 NYCRR 130-1.1 [d]). Defendant’s order to show cause concededly sought costs and sanctions solely against plaintiff and not his attorney. Inasmuch as we are remanding the matter for appropriate action, we do not consider appellant Rubin’s other points regarding the basis for or the amount of the sanctions. We note, however, that where financial sanctions are imposed against an attorney, payment of such sanctions, as opposed to the imposition of costs, "shall be deposited with the Clients’ Security Fund” (22 NYCRR 130-1.3).

We have considered the points of plaintiff-appellant and find them to be without merit. Concur—Carro, J. P., Wallach, Kupferman, Ross and Williams, JJ.