Providian National Bank v. Niccolai

—Crew III, J. Appeal from an order of the Supreme Court (Teresi, J.), entered January 20, 2000 in Albany County, which, inter alia, imposed sanctions upon defendant’s counsel. Plaintiff commenced this breach of contract action alleging that defendant failed to make payments due pursuant to a credit card loan agreement. Defendant, represented by Andrew F. Capoccia Law Centers, L. L. C. (hereinafter Capoccia), answered and asserted as an affirmative defense that the complaint failed to state a cause of action. Following discovery, plaintiff moved for summary judgment. Defendant served an opposing affirmation and plaintiffs attorney served a reply affi [848] davit requesting sanctions against Capoccia. Supreme Court granted summary judgment in favor of plaintiff and, upon concluding that the defense interposed was frivolous, imposed a sanction of $2,500 against Capoccia. Capoccia now appeals from Supreme Court’s order to the extent that it imposed sanctions. We previously have held that where, as here, the issue of sanctions is raised for the first time in a reply affidavit to a defendant’s opposition to a summary judgment motion and the record does not demonstrate that the defendant’s attorney was afforded an opportunity to be heard in response, it is error for the court to impose sanctions (see, Household Fin. Corp. III v Dynan, 274 AD2d 656). Accordingly, the matter must be remitted to Supreme Court. Moreover, Supreme Court failed to set forth the reasons why it determined that $2,500 was the appropriate sanction here, and the matter must be remitted to Supreme Court for that purpose also (see, 22 NYCRR 130-1.2; Chevy Chase, F.S.B. v Sarsfield, 278 AD2d 773). Cardona, P. J., Mercure, Peters and Rose, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much-thereof as imposed sanctions against Andrew F. Capoccia Law Centers,- L. L. C.; the issue of sanctions is remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.