Weissman v. Weissman

Jun 1, 2004
Versions:8 A.D.3d 263
777 N.Y.S.2d 678

In an action, inter alia, for a divorce *264and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Spolzino, J.), entered May 27, 2003, which denied her motion to disqualify the defendant’s attorney and granted that branch of the defendant’s cross motion which was to impose a sanction pursuant to 22 NYCRR 130-1.1 for frivolous motion practice.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment directing the plaintiff to pay costs, pursuant to 22 NYCRR 130-1.2 in the sum of $12,000.

Contrary to the plaintiffs contention, the trial court providently exercised its discretion in denying her motion to disqualify the defendant’s attorney (see Eisenstadt v Eisenstadt, 282 AD2d 570 [2001]; Olmoz v Town of Fishkill, 258 AD2d 447 [1999]; Schonwit v Schonwit, 194 AD2d 780 [1993]) and in granting that branch of the defendant’s cross motion which was to impose a sanction pursuant to 22 NYCRR 130-1.1 for frivolous motion practice and awarding the sum of $12,000, representing the defendant’s costs in opposing the motion (see 22 NYCRR 130-1.1 and 130-1.2; Greene v Merchants & Businessmen’s Mut. Ins. Co., 259 AD2d 519 [1999]; East N.Y. Sav. Bank v Sun Beam Enters., 256 AD2d 78 [1998]; Fern v Brown, Harris, Stevens, 190 AD2d 515 [1993]). The award of costs, however, should have been entered in the form of a judgment (see 22 NYCRR 130-1.2). Thus, we remit the matter to the Supreme Court, Westchester County, for entry of an appropriate judgment. Santucci, J.P., Smith, Crane and Fisher, JJ., concur.