DECISION & ORDER AFTER MOTION PURSUANT TO 22 N.Y.C.R.R. §130-1.1 The parties were never married and have one child-in-common. On September 20, 2022, the petitioner mother, M.R. (hereinafter “Mother” or “Ms. R”) filed a modification petition against the respondent father, L.N. (hereinafter “Father” or “Mr. N”). See Petition for Modification of an Order of Support (R, 09/13/2022), Nassau County Family Court Docket Number F-04314-19/22A. On November 29, 2022, Ms. R filed another modification petition against Mr. N. See Petition for Modification of an Order of Support (R, 11/14/2022), Nassau County Family Court Docket Number F-04314-19/22B. Despite attempts to settle the cases, a resolution could not be reached. Thus, the matter was scheduled for trial. A trial in the matter was commenced and completed. On July 28, 2023, the Court issued a decision after trial. See Decision, Findings of Fact, and Order after Trial (Mendelson-Toscano, S.M., 07/28/2023), Nassau County Family Court Docket Number F-04314-19/22A, 22B. The Court granted Ms. R’s application for an upward modification and for Mr. N to purchase and maintain a life insurance policy with their son as the beneficiary. See id. The Court denied Ms. R’s application for Mr. N’s contribution towards their son’s health insurance premiums, private school expenses, college expenses, and to be the sole parent who claims their son on her tax returns. Id. On that same date, due to a ministerial error, the Court issued a corrected decision after trial. See Corrected Decision, Findings of Fact, and Order after Trial (Mendelson-Toscano, S.M., 07/28/2023), Nassau County Family Court Docket Number F-04314-19/22A, 22B. On September 21, 2023, after having received the Honorable Ayesha K. Brantley’s (hereinafter “Judge Brantley”) decision after objection, dated September 20, 2023, the Court issued an amended decision after trial.1 See Amended Decision, Findings of Fact, and Order after Trial (Mendelson-Toscano, S.M., 09/21/2023), Nassau County Family Court Docket Number F-04314-19/22A, 22B. On August 18, 2023, pursuant to New York Codes, Rules and Regulations Section 130-1.1, Ms. R filed a motion seeking legal fees based upon, what she characterized as, Mr. N’s frivolous conduct. See Not. of Motion (S, 08/17/2023), Nassau County Family Court Docket Number F-04314-19/22A, 22B; see also Aff. in Supp. (S, 08/17/2023), Nassau County Family Court Docket Number F-04314-19/22A, 22B; Aff. in Supp. (R, 08/16/2023), Nassau County Family Court Docket Number F-04314-19/22A, 22B. Ms. R argued that Mr. N engaged in frivolous conduct during the course of the proceedings. She maintained that Mr. N served his mandatory financial disclosure two weeks late and did not completely comply with the Court’s expanded discovery order. Ms. R asserted that Mr. N filed baseless objections to the Court’s expanded discovery order so he would not have to disclose proof of his true income. She argued that even after his objections were denied, Mr. N failed to fully comply with the Court’s expanded discovery order. Ms. R maintained that Mr. N also failed to comply with the Court’s pretrial order. She asserted that he did not disclose the existence of other businesses and assets he owns until he was testifying at trial. Ms. R contended that she incurred enhanced legal fees because her attorney had to respond to Mr. N’s objections and find ways to force Mr. N to provide all of the income documentation to which she was entitled. On August 28, 2023, Mr. N filed opposition papers. See Aff. in Opp’n (F, 08/25/2023), Nassau County Family Court Docket Number F-04314-19/22A, 22B. On August 31, 2023, Ms. R filed reply papers. See Aff. in Reply (S, 08/31/2023), Nassau County Family Court Docket Number F-04314-19/22A, 22B. An individual against whom a frivolous conduct finding is sought is entitled to a reasonable opportunity to be heard. See 22 N.Y.C.R.R. §130-1.1(d) (McKinney’s 2023) (“[T]he form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.”); see also Crudele v. Price, 2023 N.Y. Slip. Op. 03766, at *2 (2d Dep’t 2023) (sanctions for frivolous conduct may be imposed after reasonable opportunity to be heard); Breslaw v. Breslaw, 209 A.D.2d 662, 663 (2d Dep’t 1994) (remitted for hearing where no reasonable opportunity to be heard afforded); Flaherty v. Stavropoulos, 199 A.D.2d 301, 302 (2d Dep’t 1993) (where no hearing held, matter remitted). Accordingly, the Court scheduled a hearing on October 23, 2023. On October 23, 2023, Ms. R was represented by S.K., Esq. (hereinafter “Ms. K”) and Mr. N was represented by T.F., Esq. (hereinafter “Mr. F”). Three witnesses testified on Ms. R’s case. Mr. N did not present a case. At the conclusion of the hearing, the parties delivered summations. The Court reserved decision. Having considered the evidence and the parties’ arguments, and having applied such to the law, the Court’s determination follows: THE EVIDENCE Testimonial Evidence Mr. N’s Testimony Mr. N testified that he reports his income with 1099 forms. He told the Court that he keeps tracks of his earnings by reviewing his bank statements and his receipts. He stated that when he works with Uber and Lyft, he receives tax summary reports of his earnings. He told the Court that he provides all of the documents to his accountant so his accountant can “figure it out” for tax purposes. Mr. N testified that he reported only one of his business interests, S.T., on his individual tax return because he is doing business as that company. He explained that S.T. is “me working as the company.” He told the Court that his other business interests are considered to be business structures that are separate and apart from him. Mr. N testified that he remembered the Court’s November 1, 2022 expanded discovery order. He conceded that he submitted responses to the Court’s discovery order after the deadline date. He told the Court that at the time he was ordered to provide expanded discovery, he was self-represented and did not know if the Court was acting within its authority. He stated that he filed objections to the Court’s order because he had a right to do so. Mr. N explained that he waited for Judge Brantley’s decision on his objections and then disclosed further documentation. He stated that he did not recall what additional documents he produced after Judge Brantley’s decision was issued. Mr. N testified that he completed his financial disclosure affidavit to the best of his ability. He acknowledged that at the time that he signed the document, other than S.T., he did not list the multiple businesses he owns or the various vehicles his companies owns and leases, but maintained that there was nowhere to record the information on the form. Mr. N told the Court that he testified in the underlying proceedings. He admitted that he did not disclose all of his business interests until he was testifying. He told the Court that he testified truthfully about those business interests. He stated that in the midst of the hearing, he was asked to produce additional documentation, including his companies’ bank account information, and he complied. Mr. N told the Court that he believes that he disclosed everything the Court directed him to produce. Mr. S’s Testimony Mr. S testified that he is the owner of the Law Offices of S & Associates, P.C. He told the Court that clients of his firm are provided with a retainer agreement which sets forth the parameters of their relationship — the work to be performed, hourly costs for firm employees, and expenses which may be charged for reimbursement. He stated that Ms. R signed a retainer agreement with his firm. Mr. S testified that all of his firm’s attorneys are required to bill each client contemporaneously with the work performed for them by making entries into a computer program. He told the Court that at the end of each day, all time entries must be recorded so there is no “bottleneck of information.” Mr. S explained that the entries provide each client with information about how his or her case is proceeding. He stated that the time information then goes to the firm’s accounting department to ensure that there are no errors, such as missed entries or misplaced entries onto the bill of a wrong client with the same last name. Mr. S testified that invoices are then submitted to him for his approval. He told the Court that after approval, the firm’s certified public accountant finalizes the bills. He stated that every thirty days, bills are sent to clients of the firm in paper form and electronically. Mr. S testified that he reviewed Ms. R’s billing statements before they were sent to her. He told the Court that she did not object to any of the invoices after she received them. He stated that Ms. R has an open balance on her account. He explained that the firm agreed to an arrangement wherein Ms. R “would pay what she was able, given her circumstances.” Mr. S testified that Ms. R was charged approximately $36,000.00 in legal fees and that the “vast majority of the billing was due to Mr. N’s frivolous conduct.” He was unable to quantify the monetary amount of billing directly related to Mr. N’s alleged frivolous conduct. He told the Court that when Mr. N’s “materials” arrived, he would review them with Ms. K and discuss their “sufficiency or insufficiency.” He asserted that it took more work than usual to get Mr. N’s financial information from him. Mr. S explained that Mr. N did not voluntarily provide his financial information, and did not comply with the Court’s orders, in a timely fashion. He gave an example, stating that when the Court issued an “expanded discovery order,” rather than respond to it, Mr. N chose to object to the order. Mr. S acknowledged that he strategized with Ms. K and supervised her work “to achieve maximum results” for Ms. R, but was not present at the fact-finding hearing. Ms. R’s Testimony Ms. R was asked only one question — whether Mr. S’s testimony was true and accurate. She answered in the affirmative. Documentary Evidence Ms. R admitted a copy of her modification petition, dated September 13, 2022, into evidence as Petitioner’s Exhibit 1. Ms. R admitted a copy of her modification petition, dated November 14, 2022, into evidence as Petitioner’s Exhibit 2. Ms. R admitted a copy of the Court’s discovery order, dated November 1, 2022, into evidence as Petitioner’s Exhibit 3. Ms. R admitted a copy of Mr. N’s objections to the Court’s discovery order, dated December 5, 2022, into evidence as Petitioner’s Exhibit 4. Ms. R admitted a copy of her response to Mr. N’s objections to the Court’s discovery order, dated December 15, 2022, into evidence as Petitioner’s Exhibit 5. Ms. R admitted a copy of Judge Brantley’s decision after objection, dated January 3, 2023, into evidence as Petitioner’s Exhibit 6. Ms. R admitted Mr. N’s signed and notarized financial disclosure affidavit, dated December 14, 2022, his 2021 Federal individual income tax return, his 2021 New York State resident income tax return, his 2020 Federal individual income tax return, and his 2020 New York State resident income tax return, into evidence as Petitioner’s Exhibit 7. Ms. R admitted the Court’s pre-trial order, dated February 2, 2023, into evidence as Petitioner’s Exhibit 8. Ms. R admitted the Court’s amended decision and order after trial, dated September 21, 2023, into evidence as Petitioner’s Exhibit 11. Ms. R admitted her motion papers, seeking attorneys fees pursuant to 22 N.Y.C.R.R. §130-1.1, into evidence as Petitioner’s Exhibit 12. Ms. R admitted Mr. N’s response to her motion papers, seeking attorneys fees pursuant to 22 N.Y.C.R.R. §130-1.1(a), into evidence as Petitioner’s Exhibit 13. DISCUSSION A court may award reasonable attorneys fees to a litigant where his or her adversary engages in frivolous conduct. See 22 N.Y.C.R.R. §130-1.1(a) (McKinney’s 2023) (setting forth criteria for awards of costs and sanctions for frivolous conduct in civil litigation); see also Matter of Diontae B.P. (Jil P.), 215 A.D.3d 681, 683-84 (2d Dep’t 2023) (finding provident exercise of discretion in awarding costs in form of reasonable attorneys fees for frivolous conduct); Sottilare v. Fahner, 160 A.D.3d 967, 968 (2d Dep’t 2018) (upholding frivolous conduct finding and grant of attorneys fees). Such decision is left to a court’s sound discretion. See 22 N.Y.C.R.R. §130-1.1(a) (McKinney’s 2023); see also J.D.T. v. Chaimowitz, 2023 N.Y. Slip. Op. 03940, at *2 (2d Dep’t 2023); M&T Bank v. Friedmann, 2023 N.Y. Slip. Op. 03458, at *2 (2d Dep’t 2023). Under 22 N.Y.C.R.R. §130-1.1, conduct is frivolous if it is completely without merit in law, or undertaken primarily to delay litigation or harass or maliciously injure another, or asserts materially false factual statements. See 22 N.Y.C.R.R. §130-1.1(c) (McKinney’s 2023); see also Whelan v. Busiello, 219 A.D.3d 778, 780 (2d Dep’t 2023); Merchant Cash & Capital, LLC v. Blueshyft, Inc., 211 A.D.3d 836, 837 (2d Dep’t 2022); Sottilare, 160 A.D.3d at 968. In determining whether conduct is frivolous, a court must consider, inter alia, the circumstances under which the conduct took place, including the time available for investigating the conduct’s legal or factual basis, and whether such conduct was continued where its lack of legal or factual basis was, or should have been, apparent, or was brought to the party’s or their counsel’s attention. See 22 N.Y.C.R.R. §130-1.1(c) (McKinney’s 2023); see also Sottilare, 160 A.D.3d at 968. Where a support magistrate recommends costs or sanctions based upon frivolous conduct, such support magistrate must issue a written decision setting forth the frivolous conduct upon which the disposition is based, the reasons for such determination, and the reasons why such recommended costs or sanctions are appropriate. See 22 N.Y.C.R.R. §130-1.2 (McKinney’s 2023); see also LeBoeuf v. Greene, 216 A.D.3d 1149, 1151 (2d Dep’t 2023); Breslaw, 209 A.D.2d at 663. The matter must then be referred to a judge of the family court for confirmation of such determination and imposition of any costs or sanctions. See 22 N.Y.C.R.R. §130-1.4 (McKinney’s 2023). The evidence showed that on November 1, 2022, the Court issued an expanded discovery order with a compliance date of November 30, 2022. The proof demonstrated that Mr. N disclosed his mandatory financial disclosure two weeks after such compliance date and filed objections to the additional discovery ordered by the Court. Mr. N testified that at the time that the Court issued the expanded discovery order, he was self-represented and he exercised his right to challenge the Court’s directives. Although Mr. N’s objections were not ultimately granted, his objections can not be characterized as frivolous since there was a possibility that Judge Brantley may have viewed the Court’s expanded discovery order as overreaching. See e.g. Bansi v. Nugacon Bldg. Servs., LLC, 218 A.D.3d 723, 724 (2d Dep’t 2023) (finding failure to establish frivolous conduct where defendant filed motion to compel plaintiff to accept untimely answer). There was simply no proof presented during the hearing to show that Mr. N’s objections were meritless or undertaken primarily to delay or harass. See e.g. South Point, Inc. v. Redman, 94 A.D.3d 1086, 1086-088 (2d Dep’t 2012) (court improvidently exercised discretion in awarding attorneys fees; plaintiff failed to offer evidence showing defendant’s affirmative defense was baseless). The evidence also showed that the Court issued a pretrial order with a compliance date of April 12, 2023 which directed the parties to exchange, inter alia, proof of income with each other. Although Mr. N admitted that he did not disclose the existence of all of his business interests and assets until he was giving testimony at the underlying trial, he told the Court that, upon demand, he produced financial documentation related to those businesses.2 See e.g. Pinnock v. Mercy Med. Ctr., 180 A.D.3d 1086, 1087-088 (2d Dep’t 2020) (holding defendant’s refusal to answer questions, and counsel’s conduct, at deposition did not rise to level of frivolous conduct). There was no proof presented during the hearing of Mr. N’s intent or motive to delay the proceedings, or to harass or maliciously injure Ms. R. Compare Matter of Diontae B.P. (Jil P.), 215 A.D.3d at 683 (frivolous conduct where party moved to remove guardian at same time guardian’s motion to resign was pending and failed to withdraw when court determined both motions contained same contentions); Sottilare, 160 A.D.3d at 968 (frivolous conduct where party prosecuted two identical proceedings simultaneously in two forums after representing to court that one jurisdiction would not exercise jurisdiction); Clark v. Allen & Overy, LLP, 159 A.D.3d 478, 478 (1st Dep’t 2018) (frivolous conduct where plaintiff clearly lied in opposition papers and violated sealing orders by posting online); Laing v. Laing, 261 A.D.2d 622 (2d Dep’t 1999) (frivolous conduct where mother admitted petition’s allegations were false). Although Ms. R’s papers referenced what she characterized as Mr. N’s incredible testimony at the underlying trial, which she contended substantiates her position, a transcript of Mr. N’s testimony was not offered into evidence. Mr. S merely offered his opinion that the bulk of the legal work completed on Ms. R’s case was grounded in Mr. N’s frivolous conduct, which was his legal conclusion about what had transpired, and the ultimate issue for this Court to decide. Assuming arguendo that the Court found that Mr. N engaged in frivolous conduct, there was no proof, in the papers or at the hearing, about Ms. K’s background and experience in relation to the fees charged for her work as Ms. R’s lawyer, or the quantification of any additional fees incurred which were attributable to Mr. N’s claimed frivolous conduct. The Court finds worthy of mention that Ms. R’s motion was not brought pursuant to New York State Family Court Act §438(a)3 or New York State Family Court Act §1564 under which each application would have undergone a different analysis. Moreover, Ms. R’s motion was not brought against Mr. N’s attorney. See Wesche v. Wesche, 51 A.D. 909, 910 (2d Dep’t 2008) (upholding award against firm’s frivolous conduct of ignoring discovery directives); see also Preferred Equities Corp. v. Ziegelman, 190 A.D.2d 659, 660 (2d Dep’t 1993) (matter remitted for hearing to determine reasonable attorneys fees based upon counsel’s frivolous conduct for “systematic delay of discovery process”). ADJUDGED, having considered the evidence presented at the hearing, the Court finds that Mr. N’s actions did not rise to the level of frivolous conduct within the meaning of N.Y.C.R.R. §130-1.1 as no proof was introduced establishing that such actions were undertaken primarily to delay or prolong the litigation or to harass or maliciously injure Ms. R; and it is further, ORDERED that Ms. R’s motion for attorneys fees under N.Y.C.R.R. §130-1.1 is hereby denied. This constitutes the decision, opinion, and order of the Court. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATEISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL BY WAY OF OBJECTION MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: Dated: November 3, 2023
