SITHIAN v. SPENCE

ORDERED that the judgments are affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Richmond County, for the purpose of determining the reasonable value of the services of the attorneys for the respondents in defending this appeal, and in establishing such value and awarding an additional fee therefor (cf. Duell v. Condon, 200 A.D.2d 549, affd 84 N.Y.2d 773).

This court previously affirmed an order of the Supreme Court, Richmond County, dated January 19, 2000, granting the respondents' respective motions for summary judgment dismissing the complaints insofar as asserted against them (see Sithian v. Spence, 283 A.D.2d 566). The respondents subsequently moved for an award of an attorney's fee and costs pursuant to 42 U.S.C. § 11113, and the Supreme Court granted their respective motions.

The record supports the Supreme Court's conclusion that the instant lawsuits were "frivolous" and commenced in "bad faith" ( 42 U.S.C. § 11113; see Sithian v. Staten Is. Univ. Hosp., 189 Misc.2d 410). Accordingly, the Supreme Court providently exercised its discretion in awarding an attorney's fee to the respondents under the Federal Health Care Quality Improvement Act (see 42 U.S.C. § 11113; cf. Smith v. Ricks, 31 F.3d 1478, cert denied 514 U.S. 1035). Since 42 U.S.C. § 11113 provides for the award of an attorney's fee and costs to parties forced to defend against frivolous claims, the court is also authorized to award an attorney's fee and costs incurred on the appeal (see Sklaroff v. Allegheny Health Educ. Research Found., 1998 WL 47376 [ED PA, Feb. 3, 1998]). We remit the matter to the Supreme Court, Richmond County, to determine the reasonable value of the services of the attorneys for the respondents in defending this appeal, and in establishing such value and awarding an additional fee therefor.

ALTMAN, J.P., SMITH, O'BRIEN and H. MILLER, JJ., concur.