Zappin v. Comfort , 146 A.D.3d 575 ( 2017 )

Zappin v Comfort (2017 NY Slip Op 00279)

Zappin v Comfort

2017 NY Slip Op 00279

Decided on January 17, 2017

Appellate Division, First 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 January 17, 2017
Acosta, J.P., Mazzarelli, Manzanet-Daniels, Webber, JJ.

301568/14 -6252

[*1] Anthony Zappin, Plaintiff-Appellant,

v

Claire Comfort, Defendant-Respondent.

Anthony Zappin, appellant pro se.

The Wallack Firm, P.C., New York (Robert M. Wallack of counsel), for respondent.

Cohen Rabin Stine Schumann LLP, New York (Harriet Newman Cohen of counsel), attorney for the child.

Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered September 21, 2015, which, insofar as appealed from as limited by the briefs, imposed sanctions against plaintiff husband for violating the Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1, unanimously affirmed, with costs.

Supreme Court's detailed decision is amply supported by the record, and the husband does not advance any meritorious argument that his conduct was not frivolous or in bad faith, or not designed to "harass or maliciously injure another," such that his conduct should not be sanctioned (22 NYCRR 130-1.1[c]). The record establishes that the husband engaged in unprofessional, outrageous and malicious conduct on multiple occasions, most recently by filing the bad faith disciplinary complaint against the attorney for the child's (AFC) medical expert with the Department of Health's Office of Professional Medical Conduct. Under the circumstances, particularly where the husband has exhibited a pattern of bad faith conduct throughout the proceedings despite repeated warnings not to do so, the sanctions imposed by Supreme Court were entirely proper (see 22 NYCRR 130-1.3; 22 NYCRR 130-1.1).

We have considered each of the husband's procedural arguments, including that he was entitled to a hearing because he did not have fair notice that sanctions were being considered against him, and find them unavailing. The husband had fair notice that sanctions were being considered, as the AFC requested sanctions in both her moving affirmation and again in her reply papers on the motion, but the husband did not address the AFC's request either in opposition or in surreply (see Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway , 76 NY2d 411 [1990]). The husband was also

warned repeatedly throughout the proceedings that he must adhere to the Rules of Professional Conduct (22 NYCRR 1200.0).

M-6065

M-6252 - Anthony Zappin v Claire Comfort

Motion to strike brief and for sanctions, and cross motion to strike portions of reply brief denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 17, 2017

CLERK