Opinion
Argued February 24, 2000.
May 8, 2000.
In an action to recover damages for legal malpractice and breach of contract, the defendant third-party plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Levitt, J.), dated December 17, 1998, as granted the motion of the third-party defendants to dismiss the third-party complaint, and the third-party defendants cross-appeal from so much of the same order as denied their request for an award of sanctions and legal fees pursuant to 22 NYCRR 130-1.1.
Martin E. King, Mamaroneck, N.Y. (Anne T. Breen of counsel), for defendant third-party plaintiff-appellant-respondent.
Montelione Associates, P.C., New York, N.Y. (Richard J. Montelione, pro se, of counsel), for third-party defendants-respondents-appellants and plaintiffs-respondents.
DANIEL W. JOY, J.P., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is modified by deleting the provision thereof denying that branch of the motion which was for an award of sanctions and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable to the plaintiffs-respondents and the third-party defendants-respondents-appellants, and the matter is remitted to the Supreme Court, Nassau County, for a hearing in accordance herewith.
The Supreme Court correctly determined that the third-party complaint, even if liberally construed in favor of the third-party plaintiff (see, e. g., Leon v. Martinez, 84 N.Y.2d 83, 87-88), fails to allege a breach of any duty by the third-party defendants giving rise to a cognizable claim to recover damages for legal malpractice (see, e.g., Rosner v. Paley, 65 N.Y.2d 736, 738; cf., Schauer v. Joyce, 54 N.Y.2d 1, 5).
However, the Supreme Court erred in denying the third-party defendants' request for sanctions. The entire third-party action, including the various motions made by the third-party plaintiff, is frivolous within the meaning of 22 NYCRR 130-1.1(c) in that it is without basis in law or fact, and was designed merely to harass and delay his opponents (see e.g., Mitchell v. Herald Co., 137 A.D.2d 213; see also, Intercontinental Credit Corp. Div. Of Pan Am. Trade Dev. Corp. v. Roth, 78 N.Y.2d 306; Mantovi v. Nico Constr. Co., 217 A.D.2d 650). Accordingly, the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issue of the appropriate amount of a sanction to be imposed and reasonable counsel fees to be awarded pursuant to 22 NYCRR 130-1.1.
JOY, J.P., ALTMAN, GOLDSTEIN and H. MILLER, JJ., concur.