Summary
In Rose Val. Joint Venture v Apollo Plaza Assoc. (191 AD2d 874, 875 [3d Dept 1993]), the Court held that a motion by third-party defendants for costs and sanctions, brought more than a year after dismissal of the third-party complaint, was untimely.
Summary of this case from Onetti v. Gatsby Condo.Opinion
March 11, 1993
Appeal from the Supreme Court, Sullivan County (Bradley, J.).
Alleging that the claims contained in the third-party complaint were frivolous, third-party defendants moved for an order awarding costs and reasonable counsel fees and/or imposing sanctions, pursuant to CPLR 8303-a and 22 NYCRR 130-1.1. The motion was made on January 21, 1992, more than one year after entry of Supreme Court's judgment dismissing the third-party complaint. That judgment was affirmed by this Court on December 5, 1991 ( 178 A.D.2d 695). Supreme Court dismissed third-party defendants' motion, concluding, inter alia, that the motion was untimely.
We agree with Supreme Court that this motion, brought more than one year after entry of the judgment dismissing the third-party complaint, is untimely. CPLR 8303-a (a) authorizes an award of costs and reasonable counsel fees for certain conduct "that is found, at any time during the proceedings or upon judgment, to be frivolous by the court" (emphasis supplied). 22 NYCRR 130-1.1 (a) similarly authorizes an award of costs or the imposition of sanctions "in any civil action or proceeding". We have previously held that because a final judgment terminated a proceeding, the judgment precluded a respondent from obtaining an award of costs pursuant to 22 NYCRR 130-1.1 (a) for frivolous conduct in the petitioner's commencement of the proceeding (Matter of Levin v Axelrod, 168 A.D.2d 178, 181), and we see no reason to reach a different result here. Both the statute and the regulation contemplate an award of costs within the context of the civil action or proceeding in which the frivolous conduct is alleged to have occurred. Neither the statute nor the regulation authorizes the commencement of a separate proceeding after the action or proceeding in which the frivolous conduct is alleged to have occurred has been terminated by entry of the final judgment, which is what third-party defendants are attempting to do here. Supreme Court's order dismissing third-party defendants' application should, therefore, be affirmed.
Mikoll, J.P., Levine, Mercure and Mahoney, JJ., concur. Ordered that the order is affirmed, with costs.