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Matter of Shumway v Rosenzweig, 2023 NY Slip Op 00215 [212 AD3d 728]

January 18, 2023

Appellate Division, Second Department

[*1]

In the Matter of John Shumway, Petitioner,

v

Stacey Rosenzweig, Respondent. David E. Schorr, Nonparty Appellant. (Proceeding No. 1.) In the Matter of Stacey Rosenzweig, Respondent, v John Shumway, Respondent. David E. Schorr, Nonparty Appellant. (Proceeding No. 2.)

David E. Schorr, New York, NY, nonparty-appellant pro se.

Nangia & Kazansky, LLP, Brooklyn, NY (Matthew J. Kazansky of counsel), for respondent in proceeding No. 1 and petitioner-respondent in proceeding No. 2.

In related proceedings pursuant to Family Court Act article 6, nonparty David E. Schorr, the father’s counsel, appeals from an order of the Family Court, Kings County (Denise M. Valme-Lundy, Ct. Atty. Ref.), dated January 4, 2022. The order, after a hearing, in effect, granted that branch of the mother’s cross-motion which was pursuant to 22 NYCRR 130-1.1 for an award of costs and attorneys’ fees against nonparty David E. Schorr, and directed him to pay the sum of $7,675.30 to the mother’s counsel.

Ordered that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted ( see Family Ct Act § 1112); and it is further, Ordered that the order is reversed, on the law, on the facts, and in the exercise of discretion, with costs, and that branch of the mother’s cross-motion which was pursuant to 22 NYCRR 130-1.1 for an award of costs and attorneys’ fees against nonparty David E. Schorr is denied.

The Family Court improvidently exercised its discretion by, in effect, granting that branch of the mother’s cross-motion which was pursuant to 22 NYCRR 130-1.1 for an award of costs and attorneys’ fees against the appellant, as the mother failed to demonstrate that the appellant’s conduct was frivolous within the meaning of 22 NYCRR 130-1.1 ( see Matter of Salvatore L. Olivieri Irrevocable Trust Dated 9/29/1994 , 208 AD3d 491 [2022]; Matter of Apostolidis , 193 AD3d 1039 [2021]; Rojas v Hazzard , 171 AD3d 819 [2019]). [*2] In light of our determination, we need not reach the appellant’s remaining contention. Dillon, J.P., Barros, Genovesi and Taylor, JJ., concur.

Appeal from an order of the Family Court, Kings County, dated January 4, 2022. Motion by Stacey Rosenzweig, inter alia, to dismiss the appeal on the ground that it was untimely taken. By decision and order on motion of this Court dated July 20, 2022, that branch of the motion which is to dismiss the appeal on the ground that it was untimely taken was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is Ordered that the branch of the motion which is to dismiss the appeal on the ground that it was untimely taken is denied..