Ashley v. Delarm

—Carpinello, J. Appeal from an order of the Family Court of Saratoga County (Seibert, Jr., J.), entered June 12, 1995, which, in a proceeding pursuant to Family Court Act article 6, inter alia, awarded counsel fees to respondents. Petitioner commenced a proceeding in Family Court in 1989 for visitation with her grandson. The proceeding was dismissed after trial. In 1993, petitioner commenced this proceeding for visitation with her grandson. Respondents, the child’s parents, cross-moved for an order, inter alia, dismissing the petition and for sanctions and counsel fees on the basis that the proceeding was frivolous. Family Court dismissed the petition and awarded respondents counsel fees, but denied their request for sanctions. Petitioner appeals from that part of the order awarding respondents counsel fees. The regulations governing the imposition of costs and sanctions provide that: "The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion, may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part” (22 NYCRR 130-1.1 [a]). Conduct is frivolous if: "(1) it is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; or "(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1 [c]). [737] In its decision awarding counsel fees to respondents, Family Court did not make an explicit finding that petitioner’s commencement of the proceeding was frivolous. Rather, the court stated that "it is not clear to this Court that this proceeding was commenced with the intent to harass the Respondents nor can this Court determine based upon the record before it that the proceeding was frivolous”. In view of this, we agree with petitioner that Family Court abused its discretion in awarding counsel fees (see, Race v Meyer, 219 AD2d 67; Matter of Gademsky v Masset, 213 AD2d 1082; Matter of Ireland v Ireland, 203 AD2d 463). Therefore, the order must be modified accordingly. Cardona, P. J., Mercure, Casey and Spain, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as awarded counsel fees to respondents, and, as so modified, affirmed.