Opinion
14476-14476A Index No. 158735/16 Case No. 2019–4836 2020-00937
10-26-2021
Paul IACOVACCI, Plaintiff–Respondent, v. BREVET HOLDINGS, LLC, et al., Defendants–Appellants.
Reed Smith LLP, New York (Louis M. Solomon of counsel), for appellants. Cyrulnik Fattaruso LLP, New York (Jason Cyrulnik of counsel), for respondent.
Reed Smith LLP, New York (Louis M. Solomon of counsel), for appellants.
Cyrulnik Fattaruso LLP, New York (Jason Cyrulnik of counsel), for respondent.
Kern, J.P., Oing, Singh, Mendez, Higgitt, JJ.
Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered May 8, 2019, which, to the extent appealed from, granted plaintiff's motion for sanctions against defendants, unanimously affirmed, with costs. Order, same court and Justice, entered November 14, 2019, which awarded plaintiff costs and attorneys’ fees in the amount of $23,190, unanimously affirmed, with costs.
The motion court providently exercised its discretion by imposing sanctions against defendants for instituting a pre-action petition for a bill of discovery against plaintiff's wife, a nonparty to this action, in Connecticut Superior Court (see Pickens v. Castro, 55 A.D.3d 443, 444, 867 N.Y.S.2d 47 [1st Dept. 2008] ). The Connecticut action was instituted based on the speculative claim that plaintiff's wife used a home computer that was provided to plaintiff by defendants, and allegedly could have forwarded confidential and proprietary information to other parties. However, the discovery protocol established after months of litigation between the parties in New York County Supreme Court already covered the materials sought in the Connecticut action, including emails to and from the email address purportedly used by plaintiff's wife (see e.g. Wesselmann v. International Images, 259 A.D.2d 448, 450, 687 N.Y.S.2d 339 [1st Dept. 1999] ). In addition, defendants’ assertion that they have no other means of obtaining discovery and their failure to inform the Connecticut court of the discovery proceedings in New York amount to false statements in their petition (see Matter of Kover, 134 A.D.3d 64, 74–75, 19 N.Y.S.3d 228 [1st Dept. 2015] ).
The motion court properly awarded legal fees and costs without a full evidentiary hearing (see Martinez v. Estate of Carney, 129 A.D.3d 607, 609, 13 N.Y.S.3d 20 [1st Dept. 2015] ). Defendants had ample opportunities to oppose plaintiff's fee application, but chose to dispute the prematurity of the application rather than the amount in fees sought (see Neroni v. Follender, 137 A.D.3d 1336, 1339, 26 N.Y.S.3d 621 [3d Dept. 2016] ; cf. Strauss v. Strauss, 171 A.D.3d 596, 597, 99 N.Y.S.3d 7 [1st Dept. 2019] ).