Opinion
July 20, 1987
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the order dated October 31, 1986 is reversed, on the law and in the exercise of discretion, without costs or disbursements, the motion for permission to intervene is granted, and the matter is remitted to a Justice other than the Justice who previously presided over this matter; and it is further,
Ordered that the order dated March 10, 1987 is reversed insofar as appealed from, on the law, without costs or disbursements, and the plaintiff's application for counsel fees payable by the appellants is denied.
There was evidence before the court of first instance which indicated that there was a genuine issue as to whether "extraordinary circumstances" existed which would warrant its considering if the best interests of the child would be served by granting custody to the appellants, the child's paternal grandparents (see, Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548; Matter of Tyrrell v. Tyrrell, 67 A.D.2d 247, 248, affd 47 N.Y.2d 937; Matter of Scott L. v. Bruce N., 126 A.D.2d 157; Matter of Nadia Kay R., 125 A.D.2d 674, 677, lv denied 69 N.Y.2d 608). The appellants, thus, had a "real and substantial interest" in the outcome of the matrimonial action which gave them a sound basis for seeking to intervene (see, Matter of Norstar Apts. v Town of Clay, 112 A.D.2d 750, 751; Vantage Petroleum v. Board of Assessment Review, 91 A.D.2d 1037, affd 61 N.Y.2d 695; Plantech Hous. v. Conlan, 74 A.D.2d 920, appeal dismissed 51 N.Y.2d 862). The court's finding that because of the hostility between the plaintiff and the appellants, their participation in this action would "obfuscate" the issues, and "encumber" the proceeding, is not controlling. While the relationship between the appellants and the plaintiff is seemingly acrimonious, this is not unusual in custody disputes. Despite the apparent bitterness, the intervention of the appellants in this action would be likely to illuminate the court's understanding of the issue of custody, and would also be in the interest of judicial economy (cf., Weisman v. Weisman, 107 A.D.2d 805, 806; Grossbardt v. Grossbardt, 95 A.D.2d 705). Accordingly, it was error to deny the appellants permission to intervene in this action.
The court lacked inherent power to impose counsel fees against the appellants for bringing what it believed to be a frivolous motion, and there was no statutory provision or court rule permitting the imposition of sanctions. Accordingly, the court's awarding counsel fees to the plaintiff payable by the appellants was improper (see, Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1; Claybourne v. City of New York, 128 A.D.2d 667). In any event, the appellants' claim is not frivolous. Mangano, J.P., Eiber, Sullivan and Harwood, JJ., concur.