Opinion
2005-171 K C.
Decided November 21, 2005.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ann E. O'Shea, J.), entered September 24, 2004. The order denied plaintiff's motion to vacate the order entered August 20, 2004 and restore the action to the calendar.
Order unanimously modified by granting that branch of plaintiff's motion which sought to vacate so much of the order entered August 20, 2004 as awarded defendants attorney's fees and matter remanded to the court below for all further proceedings; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ.
Plaintiff commenced the instant action against defendants to recover his security deposit, for damages sustained as a result of defendants' failure to make repairs and for damages sustained for defendants' breach of the warranty of habitability. Two prior actions commenced by plaintiff raised almost identical claims and were dismissed after defendants moved for said relief based on a release contained in a stipulation of settlement executed by plaintiff during a summary proceeding. The release stated that plaintiff waived all claims against defendants arising from the landlord/tenant relationship with the exception of any claims for personal injuries. Despite the foregoing, plaintiff commenced this third action against defendants and defendants moved, inter alia, to dismiss the complaint and for reasonable attorney's fees. Defendants' motion was granted on default. Thereafter, plaintiff moved to vacate said order and stated that he was never served with defendants' motion because it was mailed to the wrong address. Plaintiff's address on his affidavit in support of the motion is different from the address where defendants mailed their motion. While plaintiff may have established a reasonable excuse for his default, he has failed to establish that he has a meritorious action against defendants since he executed the aforementioned stipulation which contained a release and pursuant to said release, plaintiff waived any claims against defendants arising from the landlord/tenant relationship such as the claims alleged in the instant action.
However, the court's order, entered August 20, 2004, awarded defendants reasonable attorney's fees as a sanction for plaintiff's frivolous conduct but plaintiff did not have an opportunity to be heard regarding same ( see Rules of the Chief Court Administrator [ 22 NYCRR] § 130-1.1 [d]; see also Landes v. Landes, 248 AD2d 268, 269; Telemark Constr. v. Fleetwood Assocs., 236 AD2d 462, 463), nor did the order state the reasons why the court found the conduct to be frivolous ( see Rules of the Chief Court Administrator [22 NYCRR] § 130-1.2; see also Clinton Corner H.D.F.C. v. Lavergne, 279 AD2d 339, 341). Accordingly, that branch of plaintiff's motion which sought to vacate so much of the order awarding defendants attorney's fees should be granted and matter remanded to the court below for all further proceedings.