Opinion
09-30-2002
JALOR COLOR GRAPHICS, INC., Respondent, v. UNIVERSAL ADVERTISING SYSTEMS, INC., Appellant.
Robert E. Sokolski, New York City, for Fred Rosenberg, nonparty appellant. Frank Taddeo, Jr., New York City, for respondent. No appearance for appellant. SUAREZ, P.J., McCOOE and GANGEL-JACOB, JJ., concur.
OPINION OF THE COURT
Per Curiam. Orders dated December 27, 1999 and January 21, 2000 imposing part 130 (22 NYCRR 130-1.1) sanctions upon nonparty Fred Rosenberg affirmed, without costs. Appeal from order dated December 27, 1999 denying defendant's motion for an award of sanctions and other relief dismissed, without costs, as abandoned. We consider the appeal on the merits even though nonparty appellant Rosenberg, defendant's trial counsel, did not appeal the judgment that implemented the order he did appeal (CPLR 5501 [c]; see, Molinaro v Bedke, 281 AD2d 242). Reaching the merits, we find no abuse of discretion in the sanctions awards against defense counsel based upon his frivolous and vexatious litigation practices in this action (see, Matter of Scifo, 272 AD2d 335). As Civil Court appropriately recognized, the threats of criminal prosecution made by defense counsel during the course of the underlying civil lawsuit were "part of a calculated, deliberate strategy designed to harass plaintiff into folding its litigation hand, * * * and cannot be tolerated." (183 Misc 2d 294, 299.) From a procedural standpoint, we note that the court was not required to hold a formal evidentiary hearing before finding defense counsel's conduct frivolous (see, Matter of Marsh, 207 AD2d 749; 22 NYCRR 130-1.1 [d]), particularly since neither defendant nor its counsel submitted any meaningful response to the serious allegations of attorney misconduct specified by plaintiff. Leave to appeal to the Appellate Division, First Department, denied; reargument granted and, upon reargument, the decision and order of this court entered on June 5, 2002 (191 Misc 2d 653) recalled and vacated and a new decision and order substituted therefor.