Rusek v Sirata

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Rusek v Sirata 2018 NY Slip Op 31670(U) March 16, 2018 Supreme Court, Kings County Docket Number: 502794/13 Judge: Debra Silber Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: KINGS COUNTY CLERK 03/19/2018 12:41 PM 1] INDEX NO. 502794/2013 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/19/2018 At an IAS Term, Part 9 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the l 61h day of March, 2018. PRESENT: HON. DEBRA SILBER, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X WLODZIMIERZ RUSEK, DECISION I ORDER Plaintiff, - against - Index o. 502794/13 Mot. Seq. # 6, 7 WIESLAWSIRATA, EWA GRAJZER, JA BERSZAKIEWICZ and WHITE EAGLE AUTOMOT IVE, INC., Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following papers numbered 1 to 5 read herein: Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed_ _ __ _ _ _ __ Papers umbered 1-2 3-4 Opposing Affidavits (Affirmations)_ _ _ __ _ __ 4 5 Reply Affidavits (Affirmations)_ _ _ _ _ _ __ __ 5 Upon the foregoing papers, plaintiff, Wlodzimierz Rusek (Rusek), seeks an order: ( I) awarding him "costs in the form of reimbursement for actua l expenses and reasonable attorney's fees incurred in the instant action, in an amount to be determined at inquest, resulting from Defendants' frivolous conduct throughout the instant action," 1 pursuant to 22 1 See Rusek' s June 19, 2017 notice of motion. 1 of 6 [*FILED: KINGS COUNTY CLERK 03/19/2018 12:41 PM 2] NYSCEF DOC. NO. 87 INDEX NO. 502794/2013 RECEIVED NYSCEF: 03/19/2018 NYCRR 130-1.1 (Part 130), and (2) awarding him reasonable attorneys· fees .. to restore Plaintiff to the position [he] was in prior to the frauds committed by Defendants . .. " Defendants, Wieslaw Sirata (S irata) and White Eagle Automotive, Inc. (White Eagle), cross-move for an order: ( 1) impos ing Part 130 sanctions and awarding them attorneys ' fees, and (2) dismissing the complaint for lack of prosecution. Background The relevant facts regarding this action for breach of an oral agreement are described at length in this court's October 26, 20 16 decision (Trial Decision), which was issued after a bench trial conducted before this court on September 23, 2016 and September 26, 2016. In the Trial Decision, this court determined and ordered that plaintiff Rusek may enter judgment against defendants Sirata and White Eagle, jointly and severally, for $24,08 1.00 and $31,265 .00, with interest as to each amount. The parties have now filed a post-trial motion and cross motion, both of which seek Part 130 sanctions in the form of an award of costs and attorneys' fees. Rusek also seeks an award of costs and attorneys ' fees on the ground that he is the prevailing party in this action. In addition, defendants Sirata and White Eagle cross-move for an order dismissing the complaint for failure to prosecute, on the ground that Rusek has failed to submit a proposed judgment for entry to the County C lerk nine months after the Tri al Decision was issued. 2 2 of 6 [*FILED: KINGS COUNTY CLERK 03/19/2018 12:41 PM 3] NYSCEF DOC. NO. 87 INDEX NO. 502794/2013 RECEIVED NYSCEF: 03/19/2018 Discussion (1) The Motion And Cross Motion For Part 130 Sanctions Rusek moves for an order, pursuant to Part 130, awarding him litigation costs and attorneys ' fees because "Defendants undertook litigation strategies including unnecessary, meritless, and factually erroneous motion practice primarily to delay and prolong the ultimate resolution of this action." Rusek further argues that the imposition of Part 130 sanctions are warranted because "Defendants frivolously denied any knowledge or information about their own personal transactions with Plaintiff [in their answer] in clear bad faith." Defendants Sirata and White Eagle cross-move for an award of attorneys' fees and the imposition of Part 130 sanctions on the ground that Rusek has failed to submit a proposed judgment for nine months after the Trial Decision was issued. Pursuant to Part 130, the court, in its discretion, may award a party to an action "costs m the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part," and, in addition to awarding such costs, may impose financial sanctions upon a party. Conduct constitutes "frivolous conduct" under Part 130 where it "is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law," or where ·' it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another." 22 NYCRR 130-1. l 3 3 of 6 [*FILED: KINGS COUNTY CLERK 03/19/2018 12:41 PM 4] NYSCEF DOC. NO. 87 INDEX NO. 502794/2013 RECEIVED NYSCEF: 03/19/2018 (c) provides that "[i]n determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack oflegal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party." Here, the parties have each failed to demonstrate that the other's conduct in the litigation of this action rose to the level of frivolous conduct within the meaning of Part 130. Accordingly, the parties' motion and cross motion for the imposition of Part 130 sanctions and an award of costs and attorneys' fees are denied. · (2) Rusek's Motion For An Award ofAttorneys' Fees Rusek also asserts that he is entitled to an award of attorneys' fees "because Plaintiff only commenced the underlying action as a direct result of Defendants' patently fraudulent conduct which ultimately induced Plaintiff to rely on an oral agreement Defendant never had any intention in keeping." Essentially, Rusek seeks an award of attorneys' fees on the ground that he is the prevailing party in this breach of contract action. The Court of Appeals has held that "[u]nder the general rule in New York, attorneys· fees are deemed incidental to litigation and may not be recovered unless supported by statute, court rule or written agreement of the parties" (Flemmingv Barnwell Nursing Home & Health Facilities, Inc., 15 NY3d 375, 379[2010]; see also Hooper Assocs., Ltd. v AGS Computers, 4 4 of 6 [*FILED: KINGS COUNTY CLERK 03/19/2018 12:41 PM 5] NYSCEF DOC. NO. 87 INDEX NO. 502794/2013 RECEIVED NYSCEF: 03/19/2018 Inc., 74 NY2d 487, 491 [1989] [holding that ·'[u]nder the general rule, attorney ' s fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule"] ; Rosenthal v Rosenthal, 151 AD3d 773, 774 [2017] [same]). Here, Rusek has failed to demonstrate his entitlement to an award of attorneys ' fees on the basis of applicable statute, court rule or written agreement between the parties. Consequently, denial of Rusek's motion for an award of attorneys' fees is warranted. (3) Defendants' Cross Motion for Dismissal Defendants Sirata and White Eagle also cross-move for an order dismissing this action for "failure to prosecute" on the ground that Rusek has as yet failed to submit a proposed judgment for entry to the County Clerk nine months after this court issued the Trial Decision. Notably, defendants fail to cite any statute or case Jaw supporting this branch of their cross motion. While it is true that, in a case movant cites, it was held that an 18-month delay in submitting a proposed post-trial divorce judgment, where the order required the judgment to be settled on notice, justified a trial court' s discretionary dismissal for failure to prosecute (See Madigan v Klumpp, 173 AD2d 593 [2d Dept 1991 ]), that decision is inapplicable herein. The Second Department has recently held that the Supreme Court should have denied a defendant' s motion to vacate a judgment entered ten years after an order granting plaintiff 5 5 of 6 [*FILED: KINGS COUNTY CLERK 03/19/2018 12:41 PM 6] NYSCEF DOC. NO. 87 INDEX NO. 502794/2013 RECEIVED NYSCEF: 03/19/2018 damages following an inquest (see Shamshovich v Shvartsman, 110 AD3d 975, 976-977 (2d Dept 2013] [" Here, the order dated September 6, 2000, which awarded judgment to the plaintiff, contained no direction to settle or submit a judgment on notice. Thus, contrary to [movant' s] contention, the 60-day rule of 22 NYCRR 202.48 is inapplicable because no judicial action was necessary before entry of the money judgment"]; Peerless Ins. Co v Casey, 194 AD2d 411 [!51 Dept 1993] [Seven years from order to entry of judgment]). Accordingly, it is ORDERED that Rusek' s motion for an award of costs and attorneys' fees is denied; and it is further ORDERED that the branch ofSirata and White Eagle's cross motion for an award of costs and attorneys' fees is denied; and it is further ORDERED that the branch of Sirata and White Eagle's cross motion seeking to dismiss this action for failure to prosecute is denied. This constitutes the decision and order of this court. ENTER, Hon. Debra Silber, J.S.C. Hon. Debra Silber Justice Supreme Court 6 6 of 6

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