As required by CPLR 2219(a), the papers considered in the review of this Motion include: Papers Numbered Notice of Motion, Affirmation in Support and Exhibits 1 Affirmation in Opposition and Exhibits 2 Reply Affirmation 3 DECISION AND ORDER Plaintiff moves this Court, pursuant to 22 NYCRR §130-1.1, to impose costs and sanctions upon defendants and their counsel, Abrams Fensterman, for frivolous conduct in connection with the above-captioned action. For the reasons set forth herein, plaintiff’s motion is denied. Background On November 21, 2019, a jury trial commenced in the instant action. During the trial, the parties reached an agreement to settle the action for $40,000.00. On December 3, 2019, plaintiff’s counsel provided defense counsel with a General Release. On January 17, 2020, plaintiff’s counsel provided defense counsel with a Stipulation of Discontinuance. Plaintiff contends that between December 3, 2019 and February 11, 2020, plaintiff contacted defense counsel multiple times to inquire about the payment of settlement monies. On February 11, 2020, counsels spoke over the phone. Plaintiff’s counsel stated that because the settlement check was overdue, he would seek judgment with the Court per CPLR §5003-a(e). In an email memorializing the phone call, a legal assistant for plaintiff’s counsel attached the proposed judgment. Plaintiff alleges that it received no further response from defense counsel and defendants, and thus sought judgment from this Court. Defense counsel contends that it properly communicated to its clients throughout this time, and forwarded the settlement documents and proposed judgment to them. In addition, defense counsel states that after learning plaintiff’s counsel would seek default judgment, defense counsel sent several messages to its clients. In support, defense counsel annexes the affidavit of its motion clerk, Roxann Drepaul. Ms. Drepaul affirms that she forwarded the settlement documents to the clients to facilitate prompt payment and reached out to them four times via email, “imploring” them “to tender the settlement proceeds.” Discussion Sanctions On a motion for sanctions pursuant to 22 NYCRR §130-1.1, the burden of proof lies with the party seeking the imposition of the sanctions. See Miller v. Miller, 96 A.D.2d 943, 944 (2d Dept 2012). To determine the propriety of sanctions, the Court looks to the broad pattern of sanctioned litigants’ conduct, not just whether the conduct evidences merit. Levy v. Carol Mgt. Corp., 260 A.D.2d 27, 33 (1st Dept 1999). The Court’s exercise of discretion is dependent on the impact of the alleged frivolous conduct. Levy, 260 A.D.2d at 34. Conduct is frivolous if it is completely without legal merit; undertaken primarily to delay or prolong the resolution of the litigation or to harass or maliciously injure another; or asserts material factual statements that are false. 22 NYCRR 130-1.1(c); Id, at 34. The standard for a showing of frivolity is high. See West Hempstead Water Dist. v. Buckeye Pipeline Co., Inc., 152 A.D.3d 558, 559 (2d Dept 2017). Defense counsel did not seek to delay or prolong the resolution of the litigation. As evidenced by the affidavit of Ms. Drepaul, defense counsel contacted its clients several times to inquire about the settlement. The emails between Ms. Drepaul and the defendants demonstrate that defense counsel inquired about the status of payment; stated that payment was overdue; and warned defendants that plaintiff would seek judgment given the lack of response. Given the high standard for a showing of frivolity, sanctions are not warranted. The conduct by defense counsel was not undertaken primarily to delay or prolong resolution of the matter, but to facilitate payment of the settlement and inform its clients that judgment would ensue. Accordingly, the Court in its discretion denies the motion for sanctions against defense counsel. Though defendants Samuel Boateng and Amalo Service Corp. have delayed in paying settlement monies owed to plaintiff, the Court in its discretion will not impose sanctions. In assessing whether to impose sanctions, the Court must look at the broader pattern of the defendants’ conduct and “what remedy is dictated by considerations of fairness and equity.” Levy at 33. Sanctions against litigants themselves are highly disfavored. See, e.g., Blank v. Two Italians & A Latina Corp., 2007 N.Y. Slip Op. 33156(U) (Sup Ct, New York County 2007) (declining to impose sanctions where defendants delayed in paying settlement monies owed). As the COVID-19 pandemic is ongoing, the Court finds that considerations of fairness and equity further weigh against the imposition of sanctions. Accordingly, the Court in its discretion denies the motion for sanctions against the defendants. Judgment On March 4, 2020, Plaintiff sought judgment pursuant to CPLR §5003-a(e) via the Clerk of the Court. On March 16, 2020, Chief Administrative Judge Marks issued Administrative Order 68/20. AO 68/20, which still governs, postponed all “non-essential functions of the courts.” Entry of default judgment was not defined as an essential function of the Court in AO 68/20, or any other administrative order during the COVID-19 pandemic. As plaintiff’s application for judgment is still pending as a non-essential function of the Court, the Court cannot direct the Clerk to enter judgment. Plaintiff also moves this Court to enter default judgment, for the first time, in its reply. The Court has discretion to consider legal relief sought for the first time in reply. Eujoy Realty Corp. v. Van Wagner Communications, LLC, 22 N.Y.3d 413 (2013); Willette v. Willette, 53 A.D.3d 753 (3d Dept 2008) (trial court did not abuse its discretion in declining to consider relief requested in reply). However, in light of the ongoing COVID-19 pandemic and already pending judgment application, the Court in its discretion declines to grant this relief. Conclusion Accordingly, it is hereby ORDERED, that plaintiff’s motion for sanctions pursuant to 22 NYCRR §130-1.1 is hereby denied in its entirety. This constitutes the decision and order of the Court. Dated: December 24, 2020
