                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 9, 2015                     518058
________________________________

SANDY D. ZANKER-NICHOLS et al.,
   as Co-Fiduciaries of the
   Estate of ADELAIDE C. ZANKER,
   Deceased,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

UNITED REFINING COMPANY et al.,
   Foreign Corporations
   Doing Business as KWIK FILL,
                    Appellants.
________________________________


Calendar Date:   February 11, 2015

Before:   Peters, P.J., Garry, Rose and Lynch, JJ.

                             __________


     Gerald A. Kinchy, Sayre, Pennsylvania, for appellants.

      Law Office of Ron Benjamin, Binghamton (Amy C. Chambers of
counsel), for respondents.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (Reynolds
Fitzgerald, J.), entered May 14, 2013 in Broome County, which
granted plaintiffs' motion for costs.

      This negligence action seeks damages for injuries sustained
by decedent when she fell on defendants' premises in the City of
Binghamton, Broome County. On the morning that the trial was
scheduled to commence, defendants' counsel appeared and requested
an adjournment on the ground that he was ill and unable to
proceed. Supreme Court granted the adjournment. Plaintiffs then
                              -2-                518058

moved for costs, seeking reimbursement for cancellation fees paid
to two experts who had been scheduled to testify at trial. The
court granted the motion, directing defendants to reimburse
plaintiffs in the amount of $6,900. Defendants appeal.

      Although Supreme Court is vested with a broad authority to
supervise and control the conduct of trial proceedings, in light
of the findings and circumstances appearing upon the record, we
must reverse. Courts are specifically authorized to impose
"costs in the form of reimbursement for actual expenses
reasonably incurred" as a result of frivolous conduct, which
consists of actions that lack legal merit, are undertaken to
cause delay or prolong litigation, or involve material false
statements of fact (22 NYCRR 130-1.1 [a]; see 22 NYCRR 130-1.1
[c]). Here, those provisions do not apply, as the court
determined that the request by defendants' counsel for an
adjournment did not constitute such conduct.

      Courts also have authority to impose "costs in the form of
reimbursement for actual expenses reasonably incurred . . . upon
any attorney who, without good cause, fails to appear at a time
and place scheduled for an action or proceeding to be heard
before a designated court" (22 NYCRR 130-2.1 [a]). By
definition, such an award requires a determination that an
attorney acted without good cause; here again, the court made a
contrary finding, to the effect that defendants' counsel was
genuinely ill and thus unable to proceed on the day of trial.
Further, the timely appearance of an attorney at the outset of a
scheduled proceeding to request an adjournment on the ground that
he or she is unable to proceed does not constitute a failure to
appear within the meaning of this provision (see Matter of Premo
v Breslin, 89 NY2d 995, 997 [1997]; see also Matter of Tanisea
F., 44 AD3d 1043, 1044 [2007]). Finally, this provision "does
not authorize the imposition of such a sanction upon a party
personally" (Rizzuto v Rizzuto, 5 AD3d 579, 580 [2004]; see
Feldman v Feldman, 300 AD2d 347, 348 [2002]).

      In sum, Supreme Court premised the award of costs solely
upon the harm caused to plaintiffs by the cancellation fees,
rather than any type of misconduct by defendants or their
counsel. Although the concern is understandable, for the reasons
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stated above the governing rules do not authorize the award, and
no sound alternative basis has been enunciated. Accordingly, the
order must be reversed. Defendants' remaining arguments are
rendered academic by this determination.

     Peters, P.J., Rose and Lynch, JJ., concur.



     ORDERED that the order is reversed, on the law, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
