Summary
In McMurray, counsel was sanctioned for pursuing "patently frivolous" appeals in an action by the wife to obtain equitable ownership of the marital residence, which had been awarded to her former husband in their prior divorce action.
Summary of this case from Edwards v. EdwardsOpinion
July 2, 1990
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
The facts of the underlying actions were set forth in our prior two decisions and orders, both dated January 22, 1990 (see, McMurray [Christine M.] v. McMurray [John D.], 157 A.D.2d 773; McMurray [John D.] v. McMurray [Christine M.], 157 A.D.2d 773), which affirmed the orders entered May 4, 1988, and May 16, 1988, and dismissed the appeal from the order entered May 5, 1988 as superseded by the order entered May 16, 1988. We concluded therein that the appellant's conduct in commencing action No. 1 for a judgment declaring that she was the equitable owner of the former marital residence and in pursuing the instant appeals was "patently frivolous" insofar as she was once again attempting to collaterally attack portions of the judgment of divorce from which no appeal was taken. Accordingly, we ordered the appellant and the parties' attorneys to appear before this court to be heard on the record with respect to the question of sanctions as required by 22 NYCRR 130-1.1 (d) (see, Mechta v. Mack, 154 A.D.2d 440; see also, Mechta v. Mack, 156 A.D.2d 747).
The minutes of the hearing reveal that the instant appeals and action No. 1 commenced by the appellant for equitable ownership of the former marital residence were pursued by the appellant's attorney Abraham Morris without his having advised the appellant of the futile nature of her continuing attempts to collaterally attack those portions of the judgment divorcing the parties which ordered the sale of the former marital residence, from which no appeal was ever taken. In fact, Mr. Morris admittedly informed the appellant that "he felt she had a good cause of action". Although Mr. Morris did not represent the appellant in the divorce action and is thus not responsible for her failure to appeal from the judgment of divorce, it is evident that he failed to research the issues raised on the appeals he pursued on behalf of the appellant. Indeed, his appellate brief contained "legal arguments" consisting of essentially nothing more than six consecutive point headings with no discussion whatsoever of the facts or the legal principles relevant to the issues purportedly raised by these appeals. Furthermore, the frivolous nature of these appeals is readily apparent for, as we previously held, they represent further improper attempts to collaterally attack a judgment from which no appeal was taken. The law is well settled that the issues which could have been raised on an appeal had it been taken may not be relitigated in separate actions (see, Boronow v. Boronow, 71 N.Y.2d 284). It was inexcusable for counsel to commence action No. 1 and to proceed with the appeals in action No. 1 and action No. 2 since his prior attempt to collaterally attack the same judgment of divorce was rejected for the very same reasons (see, McMurray v. Mosca, 137 A.D.2d 747). Accordingly, as no reasonable explanations were proffered at the hearing to refute this court's prior findings that these appeals were frivolous, we find that a sanction of $1,000 is warranted both to compensate the defendant as well as to deter frivolous appeals. Thompson, J.P., Eiber, Balletta and Rosenblatt, JJ., concur.