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PART 130. Costs And Sanctions
SUBPART 130-1. Awards Of Costs And Imposition Of Financial Sanctions
For Frivolous Conduct In Civil Litigation
SUBPART 130-2. Imposition Of Financial Sanctions Or Costs For
Unjustified Failure To Attend A Scheduled Court Appearance |
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130.1 [Renumbered]
130-1.1 Costs; sanctions
130-1.1a Signing of papers
130-1.2 Order awarding costs or imposing sanctions
130-1.3 Payment of sanctions
130-1.4 Application to officers other
than judges
130-1.5 Exception
130-2.1 Costs; sanctions
130-2.2 Order imposing sanctions and costs
130-2.3 Payment of sanctions
130-2.4 Application to officers other than
judges |
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130.1 [Renumbered]
Historical Note
Sec. filed July 14, 1986; renum. 132.1, filed Dec. 2, 1987
eff. Dec. 1, 1987.
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| Section
130-1.1 Costs; sanctions.
(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 be payable as provided
in section 130-1.3 of this Part. 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 an 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.
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be
supported by a reasonable argument for an extension, modification
or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution
of the litigation, or to harass or maliciously injure another;
or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous
motion for costs or sanctions under this section. In determining
whether the conduct undertaken was frivolous, the court
shall consider, among other issues the (1) circumstances
under which the conduct took place, including the time available
for investigating the legal or factual basis of the conduct;
and (2) whether or not the conduct was continued when its
lack of legal or factual basis was apparent, should have
been apparent, or was brought to the attention of counsel
or the party.
(d) An award of costs or the imposition of sanctions may
be made either upon motion in compliance with CPLR 2214 or
2215 or upon the court's own initiative, after a reasonable
opportunity to be heard. The form of the hearing shall depend
upon the nature of the conduct and the circumstances of the
case.
Historical Note
Sec. filed Oct. 31, 1988; amds. filed: Oct. 9, 1997; Jan.
8, 1998; June 25, 1998 eff. June 19, 1998. Amended (a). |
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130-1.1a Signing of papers.
(a) Signature. Every pleading, written motion, and other paper, served on another
party or filed or submitted to the court shall be signed by an attorney, or by a party if the
party is not represented by an attorney, with the name of the attorney or party clearly
printed or typed directly below the signature. Absent good cause shown, the court shall
strike any unsigned paper if the omission of the signature is not corrected promptly after
being called to the attention of the attorney or party.
(b) Certification. By signing a paper, an attorney or party certifies that, to the best
of that person's knowledge, information and belief, formed after an inquiry reasonable
under the circumstances, (1) the presentation of the paper or the contentions therein are
not frivolous as defined in section 130-1.1(c) of this Subpart, and (2) where the paper is an
initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was,
the attorney or other persons responsible for the illegal conduct are not participating in the
matter or sharing in any fee earned therefrom, and (ii) the matter was not obtained in
violation of 22 NYCRR 1200.41-a [DR 7-111].
Historical Note
Sec. filed Oct. 9, 1997; amd. filed Jan. 8, 1998 eff. March
1, 1998. Amended eff. date from Jan. 1, 1998 to March 1, 1998.
Revised February 01, 2007 - Previous Version |
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| Section
130-1.2 Order awarding costs or imposing sanctions.
The court
may award costs or impose sanctions or both only upon a written
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. An award of costs or
the imposition of sanctions or both shall be entered as a
judgment of the court. In no event shall the amount of sanctions
imposed exceed $10,000 for any single occurrence of frivolous
conduct.
Historical Note
Sec. filed Oct. 31, 1988; amds. filed: Oct. 9, 1997; Jan.
8, 1998 eff. March 1, 1998. Amended eff. date from Jan. 1,
1998 to March 1, 1998. |
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130-1.3 Payment of sanctions.
Payments of sanctions by an attorney
shall be deposited with the Lawyers' Fund for Client Protection
established pursuant to section 97-t of the State Finance
Law. Payments of sanctions by a party who is not an attorney
shall be deposited with the clerk of the court for transmittal
to the Commissioner of Taxation and Finance. The court shall
give notice to the Lawyers' Fund of awards of sanctions payable
to the fund by sending a copy of the order awarding sanctions,
or by sending other appropriate notice, to the Lawyers' Fund
for Client Protection, 119 Washington Avenue, Albany, NY 12210.
Historical Note
Sec. filed Oct. 31, 1988; amds. filed: May 22, 1995; Oct.
13, 1999 eff. Oct. 7, 1999. |
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130-1.4 Application to officers other than judges of the courts
of the Unified Court System.
The powers of a court set forth in this Subpart
shall apply to judges of the housing part of the New York
City Civil Court and to support magistrates
appointed pursuant to section 439 of The Family Court Act,
except that the powers of Family Court support magistrates
shall be limited to a determination that a party or attorney
has engaged in frivolous conduct, which shall be subject
to confirmation by a judge of the Family Court who may impose
any costs or sanctions authorized by this Subpart.
Historical Note
Sec. filed Oct. 31, 1988; amd. filed March 29, 2001 eff. March
26, 2001. |
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130-1.5 Exception.
This rule shall not apply to requests for costs
or attorneys' fees subject to the provisions of CPLR 8303-a.
Historical Note
Sec. filed Oct. 31, 1988 eff. Jan. 1, 1989. |
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130-2.1 Costs; sanctions.
(a) Notwithstanding and in addition to
the provisions of Subpart 130-1 of this Part, the court, in
its discretion, may impose financial sanctions or, in addition
to or in lieu of imposing sanctions, may award costs in the
form of reimbursement for actual expenses reasonably incurred
and reasonable attorney's fees, upon any attorney who, without
good cause, fails to appear at a time and place scheduled
for an action or proceeding to be heard before a designated
court. This Part shall not apply to town or village courts
or to proceedings in a small claims part of any court.
(b) In determining whether an attorney's failure to appear
at a scheduled court appearance was without good cause and
in determining the measure of sanctions or costs to be imposed,
the court shall consider all of the attendant circumstances,
including but not limited to:
(1) the explanation, if any, offered by the attorney for
his or her nonappearance;
(2) the adequacy of the notice to the attorney of the time
and date of the scheduled appearance;
(3) whether the attorney notified the court and opposing
counsel in advance that he or she would be unable to appear;
(4) whether substitute counsel appeared in court at the
time previously scheduled to proffer an explanation of the
attorney's nonappearance and whether such substitute counsel
was prepared to go forward with the case;
(5) whether an affidavit or affirmation of actual engagement
was filed in the manner prescribed in Part 125 of the Uniform
Rules for the Trial Courts of the Unified Court System;
(6) whether the attorney on prior occasions in the same
action or proceeding failed to appear at a scheduled court
action or proceeding;
(7) whether financial sanctions or costs have been imposed
upon the attorney pursuant to this section in some other action
or proceeding; and
(8) the extent and nature of the harm caused by the attorney's
failure to appear.
(c) The court, as appropriate, may impose any such financial
sanctions or award costs upon an 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.
(d) The imposition of sanctions or award of costs may be
made either upon motion or upon the court's own initiative,
after a reasonable opportunity to be heard. The form of the
hearing shall depend upon the nature of the attorney's failure
to appear and the totality of the circumstances of the case.
Historical Note
Sec. filed Oct. 31, 1988; amds. filed: Nov. 2, 1989; May 22,
1995; Oct. 9, 1997; Jan. 8, 1998 eff. March 1, 1998. Amended
eff. date from Jan. 1, 1998 to March 1, 1998. |
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130-2.2 Order imposing sanctions and costs.
The court may impose
sanctions or award costs or both only upon a written memorandum
decision or statement on the record setting forth the conduct
on which the award or imposition is based and the reasons
why the court found the attorney's failure to appear at a
scheduled court appearance to be without good cause. The imposition
of sanctions or an award of costs or both shall be entered
as a judgment of the court. In no event shall the total amount
of sanctions imposed and costs awarded exceed $2,500 for any
single failure to appear at a scheduled court appearance.
Historical Note
Sec. filed Oct. 31, 1988; amds. filed: Nov. 2, 1989; May 22,
1995; Oct. 9, 1997; Jan. 8, 1998 eff. March 1, 1998. Amended
eff. date from Jan. 1, 1998 to March 1, 1998. |
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| Section
130-2.3 Payment of sanctions.
Payments of sanctions shall be deposited
with the Lawyers' Fund for Client Protection established pursuant
to section 97-t of the State Finance Law.
Historical Note
Sec. filed Oct. 31, 1988; amds. filed: Nov. 2, 1989; May 22,
1995 eff. July 1, 1995. |
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| Section
130-2.4 Application to officers other than judges of the courts
of the Unified Court System.
The powers of a court set forth in this
Subpart shall apply to judges of the housing part of the
New York City Civil Court, support magistrates appointed
pursuant to section 439 of the Family Court Act, and judicial
hearing officers, except that:
(a) the power of the Family Court hearing examiners shall
be limited to a determination that an attorney, without good
cause, has failed to appear at a time and place scheduled
for a Family Court proceeding, which shall be subject to confirmation
by a judge of the Family Court who may impose any sanctions
authorized by this Subpart; and
(b) the powers of judicial hearing officers shall be limited
to civil cases.
Historical Note
Sec. filed Nov. 2, 1989; amds. filed: May 22, 1995; March
29, 2001 eff. March 26, 2001. |
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