Opinion
March 27, 1995
Appeal from the Supreme Court, Orange County (Peter Patsalos, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for a hearing in accordance herewith.
A court may not impose a sanction on a litigant or an attorney absent a statute or rule granting the power to do so (see, Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1; Matter of Kernisan v. Taylor, 171 A.D.2d 869). The Supreme Court is therefore directed to hold a hearing to determine what, if any, penalty should be imposed on plaintiff's counsel and whether the penalty represents motion costs pursuant to CPLR 8202 (with its ceiling of $100) or costs or sanctions for frivolous conduct pursuant to 22 NYCRR 130-1.1 (with its requirement of a reasonable opportunity to be heard). If the penalty represents costs or sanctions pursuant to 22 NYCRR 130-1.1, the court should set forth the precise "frivolous conduct" in which the plaintiff's counsel engaged. Finally, the court should determine whether the plaintiff or her counsel is the appropriate party to pay any costs or sanction imposed (see, Gabrelian v. Gabrelian, 108 A.D.2d 445; see also, Jaswolk Realty Corp. v. Jasper, 182 A.D.2d 739; Matter of Marcus v Bamberger, 180 A.D.2d 533; Hendrickson v. Saratoga Harness Racing, 170 A.D.2d 719). Sullivan, J.P., Miller, Copertino, Joy and Friedmann, JJ., concur.