Opinion
2014-03-27
GETTY PROPERTIES CORP., et al., Plaintiffs–Respondents, v. GETTY PETROLEUM MARKETING INC., Defendant, 1314 Sedgwick Ave. LLC, et al., Defendants–Appellants.
White & Wolnerman, PLLC, New York (Randolph E. White of counsel), for appellants. Rosenberg & Estis, P.C., New York (Michael E. Feinstein of counsel), for respondents.
White & Wolnerman, PLLC, New York (Randolph E. White of counsel), for appellants. Rosenberg & Estis, P.C., New York (Michael E. Feinstein of counsel), for respondents.
Judgment, Supreme Court, New York County (Melvin Schweitzer, J.), entered July 23, 2013, inter alia, awarding plaintiffs $260,657.58, plus interest to be paid from funds held in escrow, awarding $10,000 in sanctions against the LLC defendants and Robert G. Del Gadio jointly, directing that a hearing be conducted to ascertain plaintiffs' damages, expenses and attorneys' fees, and enjoining defendants or any attorney acting on their behalf from making any motions or commencing any action in any court relating to the subject matter of this litigation without prior approval of the court, unanimously affirmed, without costs, and the matter is remitted to Supreme Court for further proceedings consistent herewith. Appeals from order, same court and Justice, entered June 17, 2013, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
In this action for, inter alia, use and occupancy, contractual indemnification, and breach of guarantee, the motion court properly granted summary judgment to plaintiffs in light of this Court's resolution of the issues on a prior appeal ( see Getty Props. Corp. v. Getty Petroleum Mktg. Inc., 106 A.D.3d 429, 966 N.Y.S.2d 1 [1st Dept.2013] ). To the extent that some of defendants' claims were not resolved on the prior appeal, the motion court properly rejected them.
The record filed by defendants' attorney was so deficient as to amount to frivolous conduct ( see22 NYCRR 130–1.1[c][3]; Rogovin v. Rogovin, 27 A.D.3d 233, 812 N.Y.S.2d 41 [1st Dept.2006] ). By order entered December 12, 2013, we granted plaintiffs leave to file a supplemental appendix without prejudice to seeking costs and/or sanctions directly on the appeal. We remit the matter to Supreme Court to determine plaintiffs' actual expenses of printing the supplemental appendix ( seeCPLR 5528[e]; Fidelity N.Y. v. Madden, 212 A.D.2d 572, 573–574, 622 N.Y.S.2d 744 [2nd Dept.1995];Mandell v. Grosfeld, 65 A.D.2d 743, 410 N.Y.S.2d 624 [1st Dept.1978] ), as well as reasonable attorneys' fees incurred in connection with plaintiffs' motion to dismiss the appeal for the deficient appendix ( see22 NYCRR 130–1.1[c][3]; Rogovin, 27 A.D.3d at 235, 812 N.Y.S.2d 41).
Finally, there is no reason to disturb the aforementioned sanctions. ACOSTA, J.P., RENWICK, FEINMAN, CLARK, JJ., concur.