Frencharoma Imports, Inc. v Seneca Ins. Co., Inc.

[*1] Frencharoma Imports, Inc. v Seneca Ins. Co., Inc. 2009 NY Slip Op 50481(U) [22 Misc 3d 142(A)] Decided on March 20, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 20, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
570907/07
PRESENT: McKeon, P.J., Heitler, J.

Frencharoma Imports, Inc. Plaintiff-Respondent, - -

against

Seneca Insurance Company, Inc., Defendant-Appellant.

Defendant appeals, as limited by its brief, from so much of an order of the Civil Court of New York, New York County (Joan M. Kenney, J.), dated November 14, 2007, as denied its motion to vacate the notice of trial, and for injunctive relief and the imposition of sanctions pursuant to 22 NYCRR § 130.1-1.

Per Curiam.

Order (Joan M. Kenney, J.), dated November 14, 2007, modified to vacate the notice of trial and as modified, affirmed, without costs.

The default judgment wrongfully procured against defendant having been properly vacated, the notice of trial upon which the judgment was obtained should have been vacated, particularly in view of the fact that defendant has not had an opportunity to conduct discovery.

We find no abuse of discretion in the court's denial of defendant's motion for sanctions pursuant to 22 NYCRR § 130.1-1. While plaintiff's counsel admittedly failed to serve defense counsel with notice of her second application for a default judgment, "trial courts should be afforded wide latitude to determine the appropriate sanctions for dilatory and improper attorney conduct and we will defer to a trial court regarding sanctions determinations unless there is a clear abuse of discretion" (see Pickens v Castro, 55 AD3d 443 [2008]). On this record and in view of counsel's proffered explanation that the notice lapse was inadvertent, we find no clear abuse of discretion. Civil Court's limited injunctive authority (see CCA 110[a][4]; 203[o]) does not extend to the relief sought by defendant in connection with plaintiff's pending agency complaint (see North Waterside Redevelopment Co. v Febbraro, 256 AD2d 261 [1998]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 20, 2009