Thornton v. Fournier

Thornton v Fournier (2019 NY Slip Op 01442) Thornton v Fournier 2019 NY Slip Op 01442 Decided on February 27, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on February 27, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. ROBERT J. MILLER COLLEEN D. DUFFY LINDA CHRISTOPHER, JJ. 2017-02159 (Index No. 66477/16) [*1]Melissa Thornton, appellant, v Angelique Fournier, respondent. Miller Zeiderman Wiederkehr & Schwarz LLP, White Plains, NY (Lisa Zeiderman and Matthew B. Marcus of counsel), for appellant. Farber, Pappalardo & Carbonari, White Plains, NY (John A. Pappalardo and Olivia T. Marotta of counsel), for respondent. DECISION & ORDER In an action for declaratory and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated January 19, 2017. The order, insofar as appealed from, granted that branch of the defendant's cross motion which was pursuant to NYCRR 130.1-1 for an award of attorney's fees and expenses for frivolous conduct. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff commenced this action and filed an order to show cause seeking, inter alia, certain declaratory and injunctive relief. The defendant cross-moved to dismiss the action and pursuant to 22 NYCRR 130-1.1 for an award of attorney's fees and expenses for frivolous conduct. The Supreme Court, inter alia, granted that branch of the defendant's cross motion which was pursuant to NYCRR 130.1-1 for an award of attorney's fees and expenses for frivolous conduct, and the plaintiff appeals. We agree with the Supreme Court's determination granting that branch of the defendant's cross motion which was pursuant to NYCRR 130.1-1 for an award of attorney's fees and expenses for frivolous conduct. The plaintiff's conduct in continuing this action after she was presented with documentary evidence demonstrating that her causes of action had no basis in law or fact was frivolous, and her continuation of the action appeared to be primarily to harass the defendant (see 22 NYCRR 130-1.1[c]; Kornblum v Kornblum, 34 AD3d 749, 751). The defendant's remaining contention is without merit. DILLON, J.P., MILLER, DUFFY and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court