Opinion
February 13, 1996
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that the order and judgment is reversed, on the law, without costs or disbursements, the plaintiffs' motion is denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings.
The court erred in sanctioning the appellants for frivolous conduct (see, 22 NYCRR 130-1.1) since their challenge to the validity of the plaintiffs' service of process was not frivolous within the meaning of 22 NYCRR 130-1.1 (c) (Matter of Ireland v Ireland, 203 A.D.2d 463; Looney v. Epervary, 194 A.D.2d 591; Matter of Barrera v. Barrera, 190 A.D.2d 667; Nowak v. Walden, 187 A.D.2d 418). Moreover, even if the conduct at issue had been frivolous, the Supreme Court failed to follow the proper procedure for imposing sanctions.
Specifically, the appellants were not given a reasonable opportunity to be heard prior to the court's sua sponte imposition of the sanction (see, George v. Wyckoff Hgts. Hosp., 222 A.D.2d 552; Breslaw v. Breslaw, 209 A.D.2d 662; Matter of Flaherty v. Stavropoulos, 199 A.D.2d 301). Additionally, the court failed to render a written decision setting forth the conduct on which the sanction was based and the reason why it found the sanction imposed to be appropriate ( 22 NYCRR 130-1.2) (see, C.B. Foods v. Quarex Co., 204 A.D.2d 504, 505; Matter of Ireland v Ireland, supra). Lastly, the court erred in requiring the appellants to pay the sanction imposed directly to the plaintiffs. Such a sanction is to be deposited with the clerk of the court for transmittal to the State Commissioner of Taxation and Finance (see, 22 NYCRR 130-1.3; Martinez v. New York City Tr. Auth., 218 A.D.2d 643; Briguglio v. Rockefeller Ctr.,
204 A.D.2d 503; cf., Nowak v. Walden, supra). Miller, J.P., Thompson, Joy and Goldstein, JJ., concur.