State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 518058 

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SANDY D. ZANKER-NICHOLS et al.,

as Co-Fiduciaries of the

Estate of ADELAIDE C. ZANKER,

Deceased,

Respondents,

v MEMORANDUM AND ORDER

UNITED REFINING COMPANY et al.,

Foreign Corporations

Doing Business as KWIK FILL,

Appellants.

________________________________

Calendar Date: February 11, 2015

Before: Peters, P.J., Garry, Rose and Lynch, JJ.

__________

Gerald A. Kinchy, Sayre, Pennsylvania, for appellants.

Law Office of Ron Benjamin, Binghamton (Amy C. Chambers of

counsel), for respondents.

__________

Garry, J.

Appeal from an order of the Supreme Court (Reynolds

Fitzgerald, J.), entered May 14, 2013 in Broome County, which

granted plaintiffs' motion for costs.

This negligence action seeks damages for injuries sustained

by decedent when she fell on defendants' premises in the City of

Binghamton, Broome County. On the morning that the trial was

scheduled to commence, defendants' counsel appeared and requested

an adjournment on the ground that he was ill and unable to

proceed. Supreme Court granted the adjournment. Plaintiffs then
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moved for costs, seeking reimbursement for cancellation fees paid

to two experts who had been scheduled to testify at trial. The

court granted the motion, directing defendants to reimburse

plaintiffs in the amount of $6,900. Defendants appeal.

Although Supreme Court is vested with a broad authority to

supervise and control the conduct of trial proceedings, in light

of the findings and circumstances appearing upon the record, we

must reverse. Courts are specifically authorized to impose

"costs in the form of reimbursement for actual expenses

reasonably incurred" as a result of frivolous conduct, which

consists of actions that lack legal merit, are undertaken to

cause delay or prolong litigation, or involve material false

statements of fact (22 NYCRR 130-1.1 [a]; see 22 NYCRR 130-1.1

[c]). Here, those provisions do not apply, as the court

determined that the request by defendants' counsel for an

adjournment did not constitute such conduct.

Courts also have authority to impose "costs in the form of

reimbursement for actual expenses reasonably incurred . . . upon

any attorney who, without good cause, fails to appear at a time

and place scheduled for an action or proceeding to be heard

before a designated court" (22 NYCRR 130-2.1 [a]). By

definition, such an award requires a determination that an

attorney acted without good cause; here again, the court made a

contrary finding, to the effect that defendants' counsel was

genuinely ill and thus unable to proceed on the day of trial. 

Further, the timely appearance of an attorney at the outset of a

scheduled proceeding to request an adjournment on the ground that

he or she is unable to proceed does not constitute a failure to

appear within the meaning of this provision (see Matter of Premo

v Breslin, 89 NY2d 995, 997 [1997]; see also Matter of Tanisea

F., 44 AD3d 1043, 1044 [2007]). Finally, this provision "does

not authorize the imposition of such a sanction upon a party

personally" (Rizzuto v Rizzuto, 5 AD3d 579, 580 [2004]; see

Feldman v Feldman, 300 AD2d 347, 348 [2002]).

In sum, Supreme Court premised the award of costs solely

upon the harm caused to plaintiffs by the cancellation fees,

rather than any type of misconduct by defendants or their

counsel. Although the concern is understandable, for the reasons
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stated above the governing rules do not authorize the award, and

no sound alternative basis has been enunciated. Accordingly, the

order must be reversed. Defendants' remaining arguments are

rendered academic by this determination.

Peters, P.J., Rose and Lynch, JJ., concur.

ORDERED that the order is reversed, on the law, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court