Calendar Date: March 31, 2017
Shirley He, Clifton Park, appellant pro se.
Pemberton & Briggs, Schenectady (Paul Briggs of counsel),
Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.
MEMORANDUM AND ORDER
(1) from an order and an order and judgment of the Supreme
Court (Chauvin, J.), entered December 9, 2014 and January 5,
2015 in Saratoga County, which, among other things, awarded
costs and counsel fees to defendants Roman Brusilovsky and
Inna Negelyov, and (2) from an order of said court, entered
April 9, 2015 in Saratoga County, which, among other things,
denied plaintiff's motion to stay enforcement of a prior
forth in our prior decision in this matter (121 A.D.3d 1336');">121 A.D.3d 1336
, lv dismissed and denied 25 N.Y.3d 1018');">25 N.Y.3d 1018
), plaintiff commenced this action against, among
others, defendants Roman Brusilovsky and Inna Negelyov
(hereinafter collectively referred to as defendants) in 2012.
Supreme Court (Ferradino, J.) dismissed the claims against
defendants as time-barred, but denied their request for an
award of costs and counsel fees. We upheld the dismissal of
the claims against defendants upon the cross appeals that
ensued. Inasmuch as plaintiff should have been well aware
that her claims against defendants "were both specious
and time-barred, " however, we found that her conduct
was frivolous within the meaning of 22 NYCRR 130-1.1 (c) and
"remit[ted] this matter to Supreme Court for the
fashioning of an appropriate award" of costs and
reasonable counsel fees (id. at 1341).
at the direction of Supreme Court (Chauvin, J.), thereafter
provided documentation showing that they had incurred $18,
524.96 in costs and counsel fees as a result of this action.
Supreme Court found that amount to be reasonable in a letter
order, then executed a formal order and judgment awarding it.
Plaintiff now appeals from the letter order and the order and
judgment, as well as Supreme Court's subsequent order
that denied her request for a stay of enforcement pending
affirm. Plaintiff argues that Supreme Court erred in failing
to hold a hearing on the amount of costs and reasonable
counsel fees to be awarded. This Court had already found that
plaintiff had engaged in frivolous conduct by commencing and
pursuing this action against defendants (id. at
1340-1341), leaving to Supreme Court the limited issue of how
much in costs and reasonable counsel fees to award. Plaintiff
was entitled to be heard on that issue, but "[t]he form
of the hearing... depend[ed] upon the nature of the conduct
and the circumstances of the case" (22 NYCRR 130-1.1
[d]; see Matter of Czajka v Dellehunt, 125 A.D.3d
1177, 1185 ).
Court stated its intention to resolve the issue on papers
unless the need for a hearing was shown. Counsel for
defendants submitted an affirmation in which he stated that
he had been retained by them in 2012 and, referencing an
attached interim bill detailing the legal work performed and
expenses incurred as a result of this action, opined that the
amount sought was reasonable and necessary. Plaintiff failed
to offer any criticism of the requested costs and counsel
fees beyond complaining in conclusory fashion that they were
"illegal and excessive." There was no request for a
hearing by the parties and, given the state of the papers, no
reason to hold one. Accordingly, in the absence of any
substantive factual dispute, Supreme Court did not abuse its
discretion in determining the amount of costs and reasonable
counsel fees on papers (see Selletti v Liotti, 104
A.D.3d 835, 836-837 ; First Deposit Natl. Bank v
Van Allen, 277 A.D.2d 858, 861 ). Supreme Court
made that determination in a written order finding that the
requested costs and counsel fees were appropriate and,
suffice it to say, its decision to do so finds ample support
in the record (see 22 NYCRR 130-1.2; Xiaokang Xu
v Xiaoling Shirley He, 147 A.D.3d 1223, 1226 ;
Matter of Aaron v Steele Law Firm, P.C., 127 A.D.3d
1385, 1390-1391 ).
rightly objected to plaintiff's attempt to obtain the
automatic stay of enforcement provided by CPLR 5519 (a) (2)
with a supposed undertaking that lacked an independent
surety, and Supreme Court properly held it to be ineffective
(see CPLR 2501 ; 2506, 2507; Alex v
Grande, 29 A.D.2d 616, 616 ). Supreme Court did
not abuse its discretion in denying plaintiff's further
request for a discretionary stay (see CPLR 5519
[c]). Plaintiff's remaining contentions, to the extent
they are properly before us, have been examined and rejected.
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.
that the orders and order and judgment are ...