598 N.Y.S.2d 534 | N.Y. App. Div. | 1993
In an action to foreclose a mechanic’s lien, the defendant Doris L. Sassower appeals from an order of the Supreme Court, Westchester County (Delaney, J.), entered March 13, 1991, which denied her motion to modify a judgment of the same court, dated September 23, 1988, foreclosing the mechanic’s lien, and directed her to pay the plaintiff the sum of $1,000 for legal fees on the ground that the motion was frivolous.
Ordered that the order is affirmed, with costs.
The defendant Doris L. Sassower entered into a contract with the plaintiff in 1984 in which the plaintiff agreed to prepare surveys, plans, and a subdivision map to enable her to subdivide her property. The plaintiff commenced this action to foreclose a mechanic’s lien after the defendant Sassower failed to make the payments due under the contract, and a judgment dated September 23, 1988, was entered in its favor. The judgment was affirmed on appeal in 1990 (see, Ward-Carpenter
We find that the motion was properly denied, as the modification sought by the appellant did not involve a mere mistake, defect, or irregularity in the judgment, but raised an issue which was not previously litigated in the action (see, Matter of Fiorillo v New York State Dept. of Envtl. Conservation, 162 AD2d 929; Jakobleff v Jakobleff, 108 AD2d 725). Furthermore, the record supports the Supreme Court’s determination that the motion was frivolous within the meaning of 22 NYCRR 130-1.1 (c), as it delayed satisfaction of the judgment and introduced a new issue of dubious merit in law or fact. Accordingly, the award to the plaintiff of a sum for its reasonable attorneys’ fees was proper (see, e.g., Presbyterian Hosp. v Allstate Ins. Co., 188 AD2d 646; Dellafiora v Dellafiora, 172 AD2d 715). Miller, J. P., O’Brien, Copertino and Joy, JJ., concur.
