Nedd v Nedd
Attorneys and Parties
Brief Summary
Divorce action; trial court sanctions against outgoing defense counsel under 22 NYCRR 130-1.1 [permits courts to award costs and attorney's fees for frivolous conduct and requires a reasonable opportunity to be heard]; substitution of counsel under CPLR 321(b)(1) [allows substitution of counsel by consent to change attorney].
The Supreme Court, Kings County, sua sponte sanctioned former defense counsel and ordered her to reimburse plaintiff’s counsel $1,375 for appearing on the trial date.
Both the July 20, 2022 sanction order and the July 26, 2022 cost order were reversed.
The attorney’s conduct was not frivolous within 22 NYCRR 130-1.1(c), she properly substituted out via CPLR 321(b)(1) using a consent to change attorney, and the court failed to provide a reasonable opportunity to be heard as required by 22 NYCRR 130-1.1(d).
Background
In a divorce action set for continued trial on July 20, 2022, the defendant requested new counsel. Two days before the appearance, former counsel Maryam Jahedi-Perez executed a consent to change attorney with the defendant and new counsel, filed it on the New York State Courts Electronic Filing System (NYSCEF), and it was received by plaintiff’s counsel. Despite this substitution, on the trial date the court sua sponte sanctioned Jahedi-Perez and later ordered her to pay $1,375 to plaintiff’s counsel.
Lower Court Decision
The Supreme Court, Kings County (Justice Esther M. Morgenstern), imposed a sanction under 22 NYCRR 130-1.1 against Jahedi-Perez and directed her to pay $1,375 to plaintiff’s counsel for the July 20, 2022 appearance, effectively finding she should have moved by order to show cause to be relieved.
Appellate Division Reversal
Reversed on the law, without costs or disbursements. The Appellate Division held the record did not show frivolous conduct; Jahedi-Perez properly complied with CPLR 321(b)(1) by executing and filing a consent to change attorney; and the court failed to afford a reasonable opportunity to be heard before imposing costs as required by 22 NYCRR 130-1.1(d).
Legal Significance
Trial courts may impose sanctions only as authorized by statute or rule, and 22 NYCRR 130-1.1 requires both frivolous conduct and a reasonable opportunity to be heard. Counsel’s withdrawal by consent under CPLR 321(b)(1) is a proper method of substitution and does not, without more, warrant sanctions.
An attorney who properly substitutes out via a consent to change attorney under CPLR 321(b)(1) cannot be sanctioned under 22 NYCRR 130-1.1 absent proof of frivolous conduct and an opportunity to be heard.