Samodovitz v. United Health Servs. Hosps.

Samodovitz v United Health Servs. Hosps. (2023 NY Slip Op 04027) Samodovitz v United Health Servs. Hosps. 2023 NY Slip Op 04027 Decided on July 28, 2023 Appellate Division, Fourth 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 July 28, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND GREENWOOD, JJ. 436 CA 23-00203 [*1]ARTHUR SAMODOVITZ, PLAINTIFF-APPELLANT, v UNITED HEALTH SERVICES HOSPITALS, INC., LEVENE, GOULDIN & THOMPSON AND ELIZABETH SOPINSKI, DEFENDANTS-RESPONDENTS. (ACTION NO. 1.) ARTHUR SAMODOVITZ, PLAINTIFF-APPELLANT, v LEVENE, GOULDIN & THOMPSON AND JORDAN CHARNETSKY, DEFENDANTS-RESPONDENTS. (ACTION NO. 2.) ARTHUR SAMODOVITZ, PLAINTIFF-APPELLANT PRO SE. BARCLAY DAMON, LLP, ALBANY (MARK T. WHITFORD, JR., OF COUNSEL) FOR DEFENDANT-RESPONDENT UNITED HEALTH SERVICES HOSPITALS, INC. LEVENE GOULDIN & THOMPSON, LLP, VESTAL (JARED R. MACK OF COUNSEL), FOR DEFENDANTS-RESPONDENTS LEVENE, GOULDIN & THOMPSON, ELIZABETH SOPINSKI AND JORDAN CHARNETSKY. Appeal from an order of the Supreme Court, Broome County (Jeffrey A. Tait, J.), entered February 2, 2022. The order directed plaintiff to pay $17,789.62 to defendant United Health Services Hospitals, Inc., and to pay $15,447.08 to defendant Levene, Gouldin & Thompson. It is hereby ORDERED that the order so appealed from is unanimously modified on the law by reducing the award of attorney's fees and costs payable to defendant United Health Services Hospitals, Inc. to $10,000 and to defendant Levene, Gouldin & Thompson to $10,000, and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced these actions sounding in fraud and negligence and seeking damages arising from allegedly false affidavits filed by defendant Levene, Gouldin & Thompson (LGT), a law firm, on behalf of its client, defendant United Health Services Hospitals, Inc. (UHSH), in a previous action between UHSH and plaintiff. Supreme Court dismissed the actions, found them to be frivolous, and awarded attorney's fees and costs to UHSH in the amount of $17,789.62 and to LGT in the amount of $15,447.08. Although we reject plaintiff's contention that the court abused its discretion in finding the actions frivolous, we agree with plaintiff that the court erred in awarding costs and fees pursuant to 22 NYCRR 130-1.1 rather than CPLR 8303-a (see Neroni v Follender, 137 AD3d 1336, 1339 [3d Dept 2016], appeal dismissed 27 NY3d 1147 [2016], rearg denied 28 NY3d 1024 [2016]; see generally Pilatich v Town of New Baltimore, 188 AD3d 1386, 1387-1388 [3d Dept 2020]; Patane v Griffin, 164 AD2d 192, 197 [3d Dept 1990], lv denied 77 NY2d 810 [1991]). Moreover, inasmuch as " '[b]y the express terms of CPLR 8303-a (a), an award [to a successful party] of costs and reasonable [attorney's] fees for frivolous litigation may not exceed [$10,000]' " (Pilatich, 188 AD3d at 1388; see Zysk v Kaufman, Borgeest & Ryan, LLP, 53 AD3d 482, 483 [2d Dept 2008]), we further agree with plaintiff that the awards must be reduced. We therefore modify the order by [*2]reducing the "award to a total of $20,000, representing $10,000 for" UHSH and $10,000 for LGT (Pilatich, 188 AD3d at 1389). Entered: July 28, 2023 Ann Dillon Flynn Clerk of the Court