        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

686
CAF 10-02101
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF JODI M. BEDWORTH-HOLGADO,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOSEPH M. HOLGADO, RESPONDENT.
------------------------------------------
ALLEN & O’BRIEN, RESPONDENT.


MAUREEN A. PINEAU, ROCHESTER, FOR PETITIONER-APPELLANT.

STUART L. LEVISON, ROCHESTER, FOR RESPONDENT ALLEN & O’BRIEN.


     Appeal from an order of the Family Court, Wayne County (Daniel G.
Barrett, J.), entered September 13, 2010 in a proceeding pursuant to
Family Court Act article 6. The order directed counsel for petitioner
to pay attorneys’ fees of $1,600 to respondent Allen & O’Brien.

     It is hereby ORDERED that the order so appealed from is
unanimously modified in the exercise of discretion by directing
petitioner’s attorney, Maureen A. Pineau, Esq., to pay respondent
Allen & O’Brien the sum of $1,600 in attorneys’ fees by July 22, 2011
and as modified the order is affirmed without costs.

     Memorandum: This is an appeal from an order directing
petitioner’s attorney to pay attorneys’ fees to respondent Allen &
O’Brien pursuant to 22 NYCRR 130-1.1 (a). Family Court determined
that petitioner’s attorney engaged in frivolous conduct by serving a
subpoena for Allen & O’Brien’s client, a licensed clinical social
worker (LCSW), to provide testimony regarding her knowledge of
petitioner mother and respondent father. The court’s order was stayed
by this Court pending the appeal.

      We conclude that the court properly set forth in writing “the
conduct on which the . . . imposition [of attorneys’ fees] is based,
the reasons why the court found the conduct to be frivolous, and the
reasons why the court found the amount . . . imposed to be
appropriate” (22 NYCRR 130-1.2; cf. Matter of Gigliotti v Bianco, 82
AD3d 1636, 1638; Ikeda v Tedesco, 70 AD3d 1498, 1499). The court
determined that the subpoena sought testimony protected by the
privilege set forth in CPLR 4508 and thus that it was “completely
without merit in law” (22 NYCRR 130-1.1 [c] [1]). The court further
determined that the parents had an agreement with the LCSW that she
would not testify for any purpose and that the parents had stipulated
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                                                         CAF 10-02101

on the record that the LCSW would not be required to testify at the
hearing. Inasmuch as there is no clear abuse of discretion, we will
not disturb the court’s determination that the conduct in question was
frivolous and that it warranted the imposition of costs in the form of
attorneys’ fees (see Grozea v Lagoutova, 67 AD3d 611; Pickens v
Castro, 55 AD3d 443). We modify the order in the exercise of
discretion, however, by directing petitioner’s attorney to comply with
the directive contained in the order by July 22, 2011, rather than the
date set forth in the order, because that date has since passed.




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
