Appeal by permission from an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated February 26, 2010. The order, insofar as appealed from, sua sponte, imposed sanctions on landlord's counsel in the amount of $500.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the imposition of sanctions is vacated.

In this holdover proceeding, landlord moved for an order directing the payment of use and occupancy during the pendency of the proceeding. The Civil Court denied the unopposed motion, noting, among other things, that service of the motion papers was inadequate, that the motion was supported only by an affirmation of counsel, and that, under the circumstances, an award of use and occupancy was not required by RPAPL 745 (2). The Civil Court further found that landlord's counsel (appellant) had engaged in frivolous conduct and, sua sponte, imposed sanctions on appellant pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1. Appellant appeals by permission from so much of the order as sua sponte imposed sanctions of $500 upon him. We reverse.

Although landlord's motion was properly denied, it did not in the circumstances appear to be frivolous (see Rules of Chief Administrator of Cts [22 NYCRR] § 130-1.1 [a]). We incidentally note that the record indicates that tenants subsequently agreed that they owed arrears for the months sought and at the level asserted by appellant. We also note that, even had the motion appeared to be frivolous, there is no indication in the record that appellant was given an opportunity to be heard prior to the court's sua sponte imposition of the sanctions, as required by Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (d). Accordingly, the order, insofar as appealed from, is reversed and the award of sanctions is vacated.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: July 07, 2011