

Youcheng Wu v Jian Xu (2016 NY Slip Op 01835)





Youcheng Wu v Jian Xu


2016 NY Slip Op 01835


Decided on March 16, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 16, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
BETSY BARROS, JJ.


2014-09008
 (Index No. 31636/13)

[*1]Youcheng Wu, respondent,
v Jian Xu, appellant.


Kevin Kerveng Tung, P.C., Flushing, NY, for appellant.
Hill Rivkings LLP, New York, NY (Justin M. Heilig and Anthony J. Pruzinsky of counsel), for respondent.

DECISION & ORDER
In an action, inter alia, for declaratory relief, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Rockland County (Alfieri, Jr., J.), dated June 27, 2014, as, upon the granting, in an order of the same court dated October 9, 2013, of that branch of the plaintiff's motion which was pursuant to 22 NYCRR 130.1-1 for an award of attorneys' fees and expenses payable by her, fixed the amount of the attorneys' fees and expenses award at the total sum of $12,330.06.
ORDERED that the order dated June 27, 2014, is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was pursuant to 22 NYCRR 130.1-1 for an award of attorneys' fees and expenses payable by the defendant is denied, and the order dated October 9, 2013, is modified accordingly.
The plaintiff failed to demonstrate that the defendant engaged in frivolous conduct within the meaning of 22 NYCRR 130-1.1(c) (see Matter of Miller v Miller, 96 AD3d 943, 944; Matter of Wieser v Wieser, 83 AD3d 950; Kaplon-Belo Assoc., Inc. v D'Angelo, 79 AD3d 931; Casey v Chemical Bank, 245 AD2d 258). In any event, the Supreme Court failed to follow the proper procedure for awarding attorneys' fees and expenses payable by the defendant, since it failed to specify in a written decision the conduct on the defendant's part upon which the award was based, the reasons why it found that conduct to be frivolous, and the reasons it fixed the award in the sum indicated (see 22 NYCRR 130-1.2; Providence Wash. Ins. Co. v Munoz, 85 AD3d 1142, 1144; Badillo v Badillo, 62 AD3d 635, 636; Rennie-Otote v Otote, 15 AD3d 380, 381).
The parties' remaining contentions are either based on matter dehors the record or without merit.
RIVERA, J.P., AUSTIN, SGROI and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court




