MASCIA v. MARESCO

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Docket Number

No. 2006-02804.

Attorney(S)

R. Bertil Peterson, Babylon, N.Y., for plaintiffs-appellants and nonparty appellant. Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for respondent. STEVEN P. FISHER, J.P., MARK C. DILLON, EDWARD D. CARNI, WILLIAM E. McCARTHY, JJ.

Judges

Mark C. Dillon
Edward D. Carni
William E. McCarthy

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Smart Summary

Factual and Procedural Background

The plaintiffs, Joseph Mascia et al., along with their counsel's employer, the Coalition of Landlords, Homeowners Merchants, Inc., brought an action against the defendant, Walter Maresco, a process server employed by the Town of Brookhaven. The plaintiffs alleged causes of action including trespass, perjury, and intentional infliction of emotional distress. These claims arose solely from the defendant's service of a summons and complaint at the plaintiffs' home in connection with an unrelated civil action, and the defendant's testimony at the subsequent traverse hearing related to that service.

The Supreme Court of Suffolk County granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(2) and (7), and separately granted the defendant's motion for sanctions under 22 NYCRR 130-1.1, awarding $5,060 for frivolous litigation. The judgment was entered in favor of the defendant's employer, the Town of Brookhaven, against the plaintiffs and their counsel's employer for sums totaling $5,060.

Legal Issues Presented

Whether the plaintiffs' causes of action for trespass, perjury, and intentional infliction of emotional distress based on the defendant's service of process and testimony were legally sufficient or frivolous.
Whether sanctions pursuant to 22 NYCRR 130-1.1 were appropriate against the plaintiffs and/or their counsel for pursuing frivolous litigation.
Whether the appeal itself was frivolous and subject to sanctions or costs under 22 NYCRR 130-1.1.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 431	Definition of frivolous conduct subject to sanctions under 22 NYCRR 130-1.1	Used to establish that conduct completely without merit in law or fact and undertaken to harass or delay is sanctionable.
Tyree Bros. Envtl. Servs. v Ferguson Propeller, 247 AD2d 376, 377	Standard for frivolous litigation and sanctions	Supported the court’s finding that plaintiffs’ claims were frivolous and sanctionable.
Kucker v Kaminsky Rich, 7 AD3d 491, 492	Requirement that claims be supported by reasonable argument for extension or modification of law	Confirmed that plaintiffs’ claims were without merit and primarily intended to harass the defendant.

Court's Reasoning and Analysis

The court analyzed the plaintiffs’ claims and determined they were frivolous because they were entirely without merit in law or fact, and could not be supported by any reasonable argument for extending, modifying, or reversing existing law. The claims stemmed solely from the defendant’s proper service of process and truthful testimony in a related civil action, which are lawful acts. The court further found that the plaintiffs’ litigation conduct appeared primarily intended to harass the defendant. Consequently, the Supreme Court properly exercised discretion in awarding sanctions and costs to the defendant’s employer pursuant to 22 NYCRR 130-1.1.

On appeal, the plaintiffs persisted in arguing the validity of their claims despite their recognized invalidity. The appellate court therefore directed the parties to submit papers addressing whether the appeal itself was frivolous under 22 NYCRR 130-1.1 and whether sanctions or costs, including attorney’s fees for defending the appeal, should be imposed.

Holding and Implications

The court AFFIRMED the judgment of the Supreme Court, including the dismissal of the complaint and the award of sanctions to the defendant's employer.

The direct effect of this decision is the upholding of sanctions against the plaintiffs and their counsel's employer for pursuing frivolous claims and litigation. The court also initiated a process to consider imposing sanctions for the appeal itself. No new legal precedent was established; rather, the court applied established standards for frivolous litigation and sanctions under 22 NYCRR 130-1.1.

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JOSEPH MASCIA et al., Appellants, v. WALTER MARESCO, Respondent. COALITION OF LANDLORDS, HOMEOWNERS MERCHANTS, INC., Nonparty Appellant.

Ordered that the judgment is affirmed, with costs; and it is further,

Ordered that, on the Court's own motion, counsel for the parties to this appeal are directed to show cause why an order should or should not be made and entered on appeal imposing such sanctions and/or costs, if any, against the appellants and/or their counsel, pursuant to 22 NYCRR 130-1.1 (c) as this Court may deem appropriate, by each filing an original and four copies of an affirmation or affidavit on that issue in the office of the Clerk of this Court and serving one copy on the other party on or before May 3, 2007; and it is further,

Ordered that the Clerk of this Court, or his designee, is directed to serve counsel for the respective parties with a copy of this decision and order by regular mail.

The plaintiffs asserted causes of action against the defendant, a process server employed by the Town of Brookhaven, based upon allegations of trespass, perjury, and intentional infliction of emotional distress. These causes of action were based solely upon the defendant's service of a summons and complaint at the front door of the plaintiffs' home, in connection with an unrelated civil action, and the defendant's testimony regarding such service at the subsequent traverse hearing held in that action. The plaintiff's causes of action are frivolous, and we thus affirm the judgment awarding sanctions to the defendant's employer.

Conduct during litigation, including on an appeal, is frivolous and subject to sanction and/or the award of costs when it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or it asserts material factual statements that are false ( see 22 NYCRR 130-1.1; Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 431; Tyree Bros. Envtl. Servs. v Ferguson Propeller, 247 AD2d 376, 377). The contentions advanced by the plaintiffs here were "completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" ( 22 NYCRR 130-1.1 [c] [1]; see Kucker v Kaminsky Rich, 7 AD3d 491, 492). Moreover, the plaintiffs' conduct in commencing this action and in continuing to advance their claims, "appears to have been intended primarily to harass the defendant" ( Kucker v Kaminsky Rich, supra at 492). Accordingly, the Supreme Court providently exercised its discretion in awarding the defendant's employer its costs and reasonable attorney's fees as a sanction pursuant to 22 NYCRR 130-1.1.

In appealing the judgment awarding costs and attorney's fees as a sanction pursuant to 22 NYCRR 130-1.1, the plaintiffs continue to argue that their entirely invalid claims stated valid causes of action against the defendant. As such, we direct the parties and/or their respective counsel to submit papers to this Court addressing whether the content of and manner in which this appeal was prosecuted by the plaintiffs and/or their counsel should be found frivolous within the meaning of 22 NYCRR 130-1.1, and if so, whether sanctions should be imposed and/or costs awarded to the defendant or his employer on appeal, including legal fees incurred in defending this appeal.