Opinion
01-02-2015
Albert G. FRACCOLA, Jr., Individually and as 50% Shareholder, Officer and Director of 1st Choice Realty, Inc., Plaintiff–Appellant, v. 1ST CHOICE REALTY, INC., Phyllis Fraccola, Individually and as 50% Shareholder, Officer and Director of 1st Choice Realty, Inc., Phyllis Fraccola as Shareholder of Hydrania, Inc., Defendants–Respondents, et al., Defendants.
Albert G. Fraccola, Jr., Plaintiff–Appellant pro se. Felt Evans, LLP, Clinton (Jay G. Williams, III, of Counsel), for Defendants–Respondents.
Albert G. Fraccola, Jr., Plaintiff–Appellant pro se.
Felt Evans, LLP, Clinton (Jay G. Williams, III, of Counsel), for Defendants–Respondents.
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM: Plaintiff appeals from an order and judgment that, inter alia, denied his motion pursuant to CPLR 5015(a)(4) to vacate a prior order and imposed sanctions in the form of costs and attorney's fees. We conclude that plaintiff's challenge to the validity of the prior order on the ground that Supreme Court lacked subject matter jurisdiction is barred by the doctrines of collateral estoppel and res judicata because that issue has previously been fully litigated and determined to be without merit (see generally Zayatz v. Collins, 48 A.D.3d 1287, 1289–1290, 851 N.Y.S.2d 797 ; Tuper v. Tuper, 34 A.D.3d 1280, 1282, 824 N.Y.S.2d 857 ). We further conclude, however, that the court erred in failing to comply with 22 NYCRR 130–1.2 inasmuch as it failed to set forth in a written decision "the conduct on which ... the imposition [of sanctions] is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount ... imposed to be appropriate" (see Ikeda v. Tedesco, 70 A.D.3d 1498, 1499, 895 N.Y.S.2d 275 ). We therefore modify the order and judgment by vacating the award of costs and attorney's fees, and we remit the matter to Supreme Court for compliance with 22 NYCRR 130–1.2.
It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by vacating the second, third and fourth ordering paragraphs, and as modified the order and judgment is affirmed without costs, and the matter is remitted to Supreme Court, Oneida County, for further proceedings.