

Yeun-Ah Choi v Shoshan (2016 NY Slip Op 01054)





Yeun-Ah Choi v Shoshan


2016 NY Slip Op 01054


Decided on February 11, 2016


Appellate Division, First 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 February 11, 2016

Sweeny, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.


210N 314516/14

[*1]Yeun-Ah Choi, Plaintiff-Respondent,
vJoshua Shoshan, Defendant-Appellant.


Berkman Bottger Newman & Rodd, LLP, New York (Walter F. Bottger of counsel), for appellant.
Mayerson Abramowitz & Kahn, LLP, New York (Karen M. Platt of counsel), for respondent.

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered July 7, 2015, which, insofar as appealed from, granted plaintiff wife's cross motion for an award of sanctions, and referred the matter to a special referee to determine the amount of the sanctions, unanimously affirmed, without costs.
The record supports Supreme Court's finding that defendant's motion to vacate the so-ordered stipulation wherein he agreed to pay plaintiff's reasonable interim counsel fees constituted "frivolous" conduct within the meaning of 22 NYCRR 130-1.1(c)(1), and warranted the imposition of sanctions (see Levy v Carol Mgt. Corp. , 260 AD2d 27, 34 [1st Dept 1999]). There was no legal merit to defendant's motion and we reject his contention that sanctions were not warranted because his motion was based on a good-faith argument that was ultimately found to be unpersuasive (see id.  at 35; W.J. Nolan & Co. v Daly , 170 AD2d 320, 321 [1st Dept 1991]). Defendant failed to allege any facts, much less prove, that the stipulation was the result of "fraud, misrepresentation, or other misconduct of an adverse party" (CPLR 5015[a][3]), or that to enforce the stipulation would be "unjust or inequitable or permit the other party to gain an unconscionable advantage" (Weitz v Murphy , 241 AD2d 547, 548 [2d Dept 1997] [internal quotation marks omitted]). Defense counsel's claim that he had been "misled" into entering the stipulation was properly rejected, given counsel's significant legal experience, and the fact that plaintiff never made any representation in the stipulation regarding future increases in her counsel's average monthly legal fees.
We have considered defendant's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 11, 2016
CLERK


