In this divorce action, Strauss v. Strauss, the husband had obtained access to wife’s iPad and private text messages. He falsely told her that he did not have the iPad and that it was lost. The husband did provide the text messages to his counsel. However, it was not until two years after the fact that it was disclosed that the husband was in possession of the iPad and text messages They announced that they intended to use the text messages at the parties’ custody trial. The husband did not explain how or why he was legally permitted to retain wife’s iPad without her knowledge, and to access and take possession of wife’s personal data located on her iPad.
The lower court, New York County Supreme Court Justice Deborah A. Kaplan, granted the wife’s motion for sanctions and awarded $180,000.00 in fees to the wife’s counsel, Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP, for the “frivolous conduct” of her husband and his counsel.
In its April 23, 2019 decision on the husband’s appeal, the Appellate Division, First Department, noted that the wife had demonstrated her husband’s conduct implicated criminal laws. While the husband asserted that he needed to preserve the information for use in the custody trial, he also conceded that he had other evidence that would have supported his position at trial. The First Department concluded, therefore, that there was no reason for the husband to rely on the text messages other than to harass and embarrass wife. Such was frivolous conduct under 22 N.Y.C.R.R. §130-1.1[c]). Moreover, the appellate court noted that the conduct was frivolous as it was completely without merit in law and could not be supported by a reasonable argument for an extension, modification or reversal of existing law (22 N.Y.C.R.R. §130-1.1[c]). Thus, the First Department affirmed Justice Kaplan’s granting of the wife’s motions for sanctions (22 N.Y.C.R.R. §130-1.2).
However, the First Department did not let the amount of attorneys’ fees stand. An award of legal fees and costs may be made upon motion and does not require a full evidentiary hearing (22 N.Y.C.R.R §130-1.1[d]). The rule, however, does require “a reasonable opportunity to be heard.” “The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case” (22 N.Y.C.R.R §130-1.l[d]). “The court may award costs . . . only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate” (22 N.Y.C.R.R §130-1.2).
Here, the wife’s application did not include an affirmation from her attorneys explaining its invoices, and, the husband was, therefore, deprived of the opportunity to question those invoices. Further, Justice Kaplan did not sufficiently explain her decision. Accordingly, the matter was remanded to lower court for a further hearing solely on the issue of the amount of attorney’s fees to be awarded to wife with respect to services of the wife’s counsel.