Opinion
April 18, 1994
Appeal from the Family Court, Putnam County (Sweeny, J.).
Ordered that the order and judgment is reversed insofar as appealed from, on the law and the facts, the provision thereof which awarded the respondent-appellant $1,500 in attorneys' fees payable by the petitioner is sticken, and the application of Gregory F. Ireland for an award of costs pursuant to 22 NYCRR 130-1.1 is denied.
Ordered that the cross appeal is dismissed as academic, in light of our determination of the appeal; and it is further,
Ordered that the petitioner is awarded one bill of costs.
The Family Court dismissed the petitioner's Uniform Support of Dependants Law proceeding to recover child support arrears, without prejudice. Even if the Family Court correctly dismissed the proceeding, we do not find that the imposition of $1,500 in attorneys' fees against the petitioner pursuant to 22 N.Y.CRR part 130 was warranted. There was nothing in the petitioner's conduct that was so obviously without merit in law or fact as to be considered "frivolous" (see, 22 NYCRR 130-1.1 [c] [1]). One of the factors the court must consider in deciding whether to impose costs under this provision is whether the conduct "was continued when its lack of legal or factual basis was apparent or should have been apparent" ( 22 NYCRR 130-1.1 [c]). In fact, the petitioner sought to withdraw her petition when Gregory Ireland brought his motion to dismiss at the outset of the proceeding.
Even if we were to conclude that the petitioner's conduct was frivolous, the Family Court erred in failing to include in its written decision a statement of "the conduct on which the award or imposition [was] based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate" ( 22 NYCRR 130-1.2; Nowak v Walden, 187 A.D.2d 418). Finally, the petitioner was not afforded a reasonable opportunity to be heard on the issue of whether her conduct was frivolous (see, 22 NYCRR 130-1.1 [d]; Flaherty v Stavropoulos, 199 A.D.2d 301). Sullivan, J.P., Joy, Hart and Krausman, JJ., concur.