Felipe E. Orner, nonparty-appellant and for appellants OR FM Associates and Tzifil Realty (brief filed). Corporation Counsel of the City of NY (Lauren L. O'Brien of counsel), for respondent, DHPD (brief filed). Nolan Santaliz, petitioner-respondent pro se (no brief filed).

Appeals from three orders of the Civil Court of the City of New York, Kings County (Jack Stoller, J.), one dated March 24, 2022 and two dated May 2, 2022. The March 24, 2022 order (appeal No. 2022-322 K C), insofar as appealed from, after a nonjury trial, directed OR FM Associates and Tzifil Realty Corp. to repair enumerated cited and uncited violations. One order dated May 2, 2022 (appeal No. 2022-359 K C) denied a motion by OR FM Associates and Tzifil Realty Corp. to amend or modify the March 24, 2022 order. A separate order dated May 2, 2022 (appeal No. 2022-343 K C), insofar as appealed from, denied a cross-motion by OR FM Associates and Tzifil Realty Corp. seeking sanctions against the Department of Housing Preservation and Development, and granted the branch of a cross-motion by the Department of Housing Preservation and Development seeking sanctions against Felipe Orner, the attorney for OR FM Associates and Tzifil Realty Corp. (op 75 Misc 3d 1201[A], 2022 NY Slip Op 50333[U] [2022]).

ORDERED that the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the appeal from the March 24, 2022 order (appeal No. 2022-322 K C) and the appeal from the May 2, 2022 order denying the motion to amend or modify the March [*2]24, 2022 order (appeal No. 2022-359 K C) are dismissed as abandoned; and it is further,

ORDERED that the May 2, 2022 sanctions order (appeal No. 2022-343 K C), insofar as appealed from, is modified by providing that the following language is stricken from the third "ORDERED" paragraph thereof: "said 'this is ridiculous' on the record"; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In March 2021, tenant, Nolan Santaliz, commenced this proceeding by order to show cause in lieu of notice of petition (see CPLR 403 [d]) against OR FM Associates, the owner, and Tzifil Realty Corp., the managing agent (collectively "landlord"), of the building in which tenant resided, and against the Department of Housing Preservation and Development (HPD) seeking, among other things, a judgment of harassment against OR FM Associates and an order directing landlord to repair violations of the New York City Housing and Maintenance Code. Landlord answered and counterclaimed. Numerous motions and cross-motions were thereafter filed including, insofar as relevant to this appeal, a motion by HPD to quash landlord's trial subpoena, a cross-motion by landlord seeking sanctions against HPD for moving to quash the trial subpoena, and a cross-motion by HPD seeking sanctions against landlord and its attorney, Felipe Orner. Following a nonjury trial, the Civil Court (Jack Stoller, J.) issued an order, dated March 24, 2022, which dismissed so much of the petition as sounded in harassment and, insofar as appealed from, directed landlord to, among other things, repair enumerated conditions. Landlord then moved to amend or modify the repair portion of the order, which motion was denied by order (Jack Stoller, J.) dated May 2, 2022. In a separate order dated May 2, 2022, insofar as appealed from, the court (Jack Stoller, J.) denied the cross-motion by landlord seeking sanctions against HPD and granted the branch of the cross-motion by HPD seeking sanctions against Orner, directing him to pay $2,500 to the Lawyer's Fund For Client Protection (see Rules of Chief Admr of Cts [22 NYCRR] § 130-1.3).

On appeal, Orner contends that the May 2, 2022 order imposing sanctions against him should be reversed due to the judicial misconduct of Judge Stoller who, he claims, among other things, fabricated evidence and disregarded evidence submitted by landlord both at trial and in motions. Orner further argues that his constitutional right to due process was violated because he was not provided with an opportunity to address matters that were not raised by HPD in its cross-motion papers but which the Civil Court sua sponte considered in imposing sanctions against him. In addition, landlord contends on appeal that the cross-motion seeking sanctions against HPD should have been granted.

The appellants' main brief and reply brief both set forth, as the relief sought, that "the appealed orders should be reversed and modified in part [by] striking the imposition of costs and sanctions against . . . Felipe Orner, and directing that such amount be refunded to him by the Lawyer's Fund, and imposing cost[s] and sanctions against HPD in the amount of $20,000." Neither the March 24, 2022 order nor the May 2, 2022 order denying landlord's motion to amend or modify the March 24, 2022 order imposed "costs and sanctions" or denied such relief, and landlord otherwise makes no arguments in support of the reversal of these orders on appeal. Consequently, the appeal from the March 24, 2022 order (appeal No. 2022-322 K C) and the appeal from the May 2, 2022 CPLR 4404 order (appeal No. 2022-359 K C) are dismissed as abandoned (see e.g. Finger v Saal, 56 AD3d 606, 607 [2008]; Andre v City of New York, 47 AD3d 605, 606 [2008]).

It is well settled that the imposition of sanctions, sua sponte or upon motion, may be made only after the attorney or party to be sanctioned is afforded a reasonable opportunity to be heard (see 22 NYCRR 130-1.1 [a], [d]; Matter of Fernandez v Nigro, 178 AD3d 703, 705 [2019]; Oppedisano v Oppedisano, 138 AD3d 1080, 1081 [2016]; Matter of Griffin v Panzarin, 305 AD2d 601, 603 [2003]). With respect to HPD's cross-motion, in the Civil Court's May 2, 2022 sanctions order, the first four "ORDERED" paragraphs set forth the various acts by Felipe Orner which were the bases for the court's imposition of sanctions (see Santaliz v OR FM Assoc., 75 Misc 3d 1201[A], 2022 NY Slip Op 50333[U], *9 [Civ Ct, Kings County 2022]). With one exception, the grounds for sanctions contained in the first four "ORDERED" paragraphs of the sanctions order were raised in HPD's cross-motion for sanctions and in the exhibits attached thereto, and, thus, were not considered by the Civil Court sua sponte. Therefore, Orner had a reasonable opportunity to be heard with respect to those grounds (see 22 NYCRR 130-1.1 [d]; Matter of Minister; Elders & Deacons of Refm. Prot. Dutch Church of City of NY v 198 Broadway, 76 NY2d 411, 413 n [1990]; Matter of Ruth S. (Sharon S.), 125 AD3d 978, 980 [2015]; Selletti v Liotti, 104 AD3d 835, 836 [2013]). However, the third "ORDERED" paragraph provides as follows:

"ORDERED that Felipe Orner's [sic] disrespectfully raised his voice to the Court, said 'this is ridiculous' on the record, called the undersigned 'a disgrace' on the record, and emailed the Court to complain about working on a Sunday to prepare for trial, conduct that was baseless, frivolous, disrespectful, unprofessional, and sanctionable, and it is further"

(Santaliz v OR FM Assoc., 2022 NY Slip Op 50333[U], *9 [emphasis added]).

As HPD's attorney did not argue in the supporting affirmation that sanctions should be imposed on the specific ground that Orner "said 'this is ridiculous' on the record" during an October 21, 2021 virtual court appearance, and HPD did not submit a transcript of that appearance, these words must be stricken from that paragraph, since Orner did not have a reasonable opportunity to be heard thereon (see 22 NYCRR 130-1.1 [d]; Fernandez v Nigro, 178 AD3d at 705; Oppedisano v Oppedisano, 138 AD3d at 1081; Matter of Griffin v Panzarin, 305 AD2d at 603).

A court, may, in its discretion, impose sanctions against a party, the attorney for the party, or both, for "frivolous conduct" (see 22 NYCRR 130-1.1 [b], [d]; M & T Bank v Friedmann, 217 AD3d 934 [2023]; Miller v Cruise Fantasies, Ltd., 74 AD3d 919 [2010]). "[C]onduct 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" (22 NYCRR 130-1.1 [c]; see Merchant Cash & Capital, LLC v Blueshyft, Inc., 211 AD3d 836, 837 [2022] [finding that an attorney's actions, including rude and inappropriate behavior, "were intended to delay the proceedings and to harass"]; U.S. Bank N.A. v Gonzalez, 99 AD3d 694 [2012] [affirming an award of sanctions where the plaintiff persisted in making representations that were demonstrated to be false]).

Landlord's cross-motion seeking sanctions against HPD was based on HPD's alleged frivolous conduct in moving to quash landlord's trial subpoena. In the subpoena, landlord sought, in four demands, the production of documents and testimony. HPD moved to quash the [*3]subpoena arguing, among other things, that the requests were overbroad, unduly burdensome, immaterial and unnecessary, or were a fishing expedition. By order dated December 23, 2021, the Civil Court (Jack Stoller, J.) granted HPD's motion to quash "to the extent of quashing the Third Demand and the Fourth Demand of the Subpoena" and "denie[d] so much of HPD's motion as [sought] to quash the First Demand and the Second Demand of the Subpoena." We find that the arguments HPD made in support of its motion to quash, although only partially successful, "were of colorable merit, and were not made in bad faith" (Gordon Group Invs., LLC v Kugler, 127 AD3d 592, 594 [2015]; see Yenom Corp. v 155 Wooster St. Inc., 33 AD3d 67, 70 [2006]). Consequently, as landlord failed to show that HPD submitted its motion to quash "primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (22 NYCRR 130-1.1 [c] [2]), landlord's cross-motion for sanctions was properly denied.

Regarding the sanctions imposed against Orner, the record does not support his contention that Judge Stoller was biased against him or landlord, or that the court's determinations otherwise constituted judicial misconduct. Moreover, the record supports the court's findings that Orner's statements in emails and submissions to the court "were baseless, frivolous, disrespectful, unprofessional, and intended to delay the trial of this matter," that his statements to his adversaries "were baseless and meritless attacks" and that his "Recusal Motion was made primarily to incur a delay of litigation" (Santaliz v OR FM Assoc., 2022 NY Slip Op 50333[U], *9). We therefore find that the imposition of sanctions against Orner is warranted on this record (see 22 NYCRR 130-1.1 [c] [2]), and we leave it undisturbed, even in the absence of the finding stricken from the third "ORDERED" paragraph.

The remaining arguments by landlord and Felipe Orner lack merit.

Accordingly, the May 2, 2022 sanctions order (appeal No. 2022-343 K C), insofar as appealed from, is modified by providing that the following language is stricken from the third "ORDERED" paragraph thereof: "said 'this is ridiculous' on the record."

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.