Opinion
October 11, 1989
Pentak, Brown Tobin for plaintiff. Roemer Featherston-haugh, P.C. (Melissa J. Smallacombe of counsel), for defendants.
This action involves various claims and separate theories of liability against defendants arising out of the theft of a bus. Defendants provided insurance coverage to plaintiff.
On this motion, plaintiff seeks to strike the second affirmative defense, dismiss a counterclaim and vacate a demand for a bill of particulars. Motion papers in support of the motion and in opposition have been read and considered by the court.
Defendants consent to dismissal of the second affirmative defense; therefore, the second affirmative defense is stricken.
Defendants' demand for a bill of particulars is objected to by plaintiff. Plaintiff asserts that many of the demands are palpably improper and that the entire demand is unreasonable, burdensome and oppressive.
The attorneys for the parties recite unsuccessful attempts to speak to each other. The papers do not recite any discussion of the merits of the arguments between counsel. Nowhere is it recited that the parties can agree on any of the 34 demands contained in the demand for a bill of particulars.
The mere recitation of a few phone calls to the other attorney without any discussion of the specific objections is insufficient to comply with section 202.7 of the Uniform Rules for Trial Courts ( 22 NYCRR 125.1 et seq.). The motion to vacate the demand for a bill of particulars is denied.
The counterclaim sets forth a cause of action for attorney's fees and sanctions. No such separate cause of action is permitted. Defendant has no right to such damages. Attorney's fees and sanctions are permitted by 22 NYCRR 130-1.1 (d) and CPLR 8303-a to penalize specific frivolous conduct. The court in its discretion may award attorney's fees and sanctions.
A party is not entitled to such relief as a matter of right, and it may not be pleaded as a distinct cause of action. A party may apply for such relief by motion upon the happening of specific conduct. An assertion that plaintiff's entire pleading is frivolous may be tested upon a summary judgment motion to dismiss the complaint. A counterclaim for attorney's fees and sanctions based upon the assertion that the action is frivolous is improper.
The motion to dismiss the counterclaim is granted.