Rivera v. Sales

Motion by the respondent on an appeal from an order of the Supreme Court, Rockland County, dated March 16, 1993, to (1) dismiss the appeal, and (2) to impose sanctions, costs, and attorneys’ fees, which was held in *516abeyance by decision and order on motion of this Court dated July 30, 1993.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is,

Ordered that the motion is denied.

The respondent’s contention that this appeal should be dismissed because the release given by the appellant’s counsel estops subsequent claims is without merit. Here, the release was expressly given in escrow, contingent upon certain conditions which were not met.

In addition, the respondent’s request for sanctions against the appellant’s counsel due to the frivolous nature of the appeal is without basis. The test that the appeal was "undertaken * * * to harass or maliciously injure another”, as prescribed by 22 NYCRR 130-1.1 (c) (2), has not been met. That test speaks of arguments by appellate counsel that are "completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1 [c] [1]). The appellant’s arguments do not reach such a level so as to warrant the imposition of sanctions. Rosenblatt, J. P., Miller, Ritter and Hart, JJ., concur.