July 20, 2008
A woman alleged injuries after she was thrown from a horse when part of the ceiling of a riding stable collapsed. Through counsel, suit was filed against the stable, its owner and a number of persons and entities that were believed to be involved in the construction of the stable. When it turned out that one of the defendants was not so involved, the suit was dismissed as to that defendant. Under those circumstances, the New York Appellate Division for the Second Judicial Department held that sanctions against the plaintiff were improperly imposed by the trial court:
The Supreme Court incorrectly found that sanctions were warranted. The court did not set forth in a written decision the conduct which was the basis of the sanction (see 22 NYCRR 130-1.2). In any event, under the circumstances of this case, the information available to the plaintiff's counsel concerning the contractor involved in the construction of the riding stable was sufficiently ambiguous to justify the plaintiff's reluctance to discontinue the action against the defendant (see Watson v City of New York, 178 AD2d 126).
In addition, the plaintiff offered to discontinue the action against the defendant once a deposition of the owner of the riding stable revealed that the defendant was not a contractor in the construction of the stable. Approximately five months passed from when the defendant served an answer until a stipulation of discontinuance was sent to his counsel. Under these circumstances, the plaintiff's conduct did not rise to the level of "harassment" or "prolonging the resolution of the litigation" so as to constitute frivolous conduct.
Accordingly, the Supreme Court erred in granting that branch of the defendant's motion which was to impose sanctions against the plaintiff and to recover an award of an attorney's fee from the plaintiff pursuant to 22 NYCRR 130-1.1.
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