Fishoff Family Found. v. Frydman , 148 A.D.3d 601 ( 2017 )

Fishoff Family Found. v Frydman (2017 NY Slip Op 02371)

Fishoff Family Found. v Frydman

2017 NY Slip Op 02371

Decided on March 28, 2017

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 March 28, 2017
Friedman, J.P., Sweeny, Renwick, Andrias, Manzanet-Daniels, JJ.

653838/14 3525 3524

[*1]Fishoff Family Foundation, et al., Plaintiffs, Mark Appel, Plaintiff-Respondent,

v

Jacob Frydman, et al., Defendants-Appellants, Urti GP, LLC, et al., Defendants.

Wrobel Markham Schatz Kaye & Fox LLP, New York (M. Katherine Sherman of counsel), for appellants.

Abe George, Brooklyn, for respondent.

Orders, Supreme Court, New York County (Saliann Scarpulla, J.), entered October 22, 2015, which, insofar as appealed from, denied defendants' motion for sanctions, unanimously affirmed, with costs.

Insofar as relevant here, to be liable for sanctions, a party or attorney must knowingly submit or sign pleadings or papers containing materially false statements of fact (Rules of Chief Admin of Cts [22 NYCRR] § 130-1 et seq.). Whether to impose sanctions, even in such a case, is left to the discretion of the court (see e.g. Weisburst v Dreifus, 89 AD3d 536 [1st Dept 2011]). Here, plaintiffs stated that they relied on prior counsel for the allegations raised in the complaint after counsel's investigation. Given that many of the facts in the complaint were a matter of public record, and that defendants never deposed prior counsel or otherwise established that he lacked a good faith basis for the allegations, the court did not abuse its discretion in denying the motion.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 28, 2017

CLERK