Frank M. v. Siobahn N.

Mugglin, J. Appeal from an order of the Family Court of Ulster County (Mizel, J.), entered October 23, 1998, which, in a proceeding pursuant to Family Court Act article 6, imposed costs and sanctions on petitioner’s attorney for frivolous conduct. In a prior proceeding, petitioner obtained an order of filiation prior to the birth of his child. Concerned that respondent Siobahn N. (hereinafter respondent), the mother, would place the child for adoption, petitioner commenced this custody proceeding by order to show cause and petition shortly after the child was born. The order to show cause granted temporary custody to petitioner. Upon a motion by respondent’s attorney and after a hearing, Family Court found that petitioner’s attorney engaged in frivolous conduct by knowingly requesting and receiving ex parte relief without personally ascertaining that the court was aware that her adversary was present in the courthouse and available for conference and argument on [809] the requested relief, thereby wasting the court’s time and the time of all counsel. The court imposed costs of $50 and a sanction of $50, resulting in this appeal by petitioner’s attorney. An attorney may be sanctioned only if there is a statute or a court rule authorizing the sanction (see, Matter of Premo v Breslin, 89 NY2d 995, 997). Sanctions for frivolous conduct are authorized by 22 NYCRR 130-1.1, but the only definition of frivolous conduct arguably applicable to this case is conduct “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1 [c] [2]). Although Family Court was apparently of the view that the proceeding was prolonged by the conduct of petitioner’s attorney, the court expressly found that the custody issue “was resolved fairly quickly and easily”. More importantly, the court made no finding that the attorney’s primary purpose was to prolong the proceeding, or to harass or maliciously injure another. Nor does the evidence support such a finding. It appears that counsel sought prompt judicial intervention by way of an order to show cause for the primary purpose of protecting her client’s parental rights, and it is not clear that she had any reason to believe that the Family Court was unaware of the presence of respondent’s attorney. Court personnel, who were aware of the presence of respondent’s attorney, inexplicably failed to pass this information along to the court. At most, the conduct of petitioner’s counsel reflects a lack of professional courtesy but it does not rise to the level of frivolous conduct (see, Brocklebank v City of Lockport, 198 AD2d 906). While we share in Family Court’s obvious displeasure, we are constrained by the language of 22 NYCRR 130-1.1 to conclude that the imposition of sanctions, under the circumstances of this case, was an abuse of discretion. Crew III, J. P., Spain and Graffeo, JJ., concur.