Jessica T. v. Kieth T., NYLJ September 11, 2020,  Date filed: 2020-06-12,     Court: Supreme Court, Suffolk, Judge: Justice Patrick Leis, III,     Case Number: 33914/2013:

“Similarly, this Court has the discretion to impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct (22 NYCRR 130-1.1[a]; see Rhodes v. Rhodes, 169 A.D.3d 841, 844, 94 N.Y.S.3d 123, 127 [2d Dept 2019]). Conduct is frivolous and sanctions may be awarded if “it is completely without merit in law” or fact and “cannot be support by a[ny] reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1[c][1]). Furthermore, if conduct “is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1 [c] [2]) or if such conduct “asserts material factual statements that are false” (22 NYCRR 130-1.1 [c] [3]) sanctions may be warranted (see Weissman v. Weissman, 116 A.D.3d 848, 849, 985 N.Y.S.2d 93 [2d Dept 2014]). In light of the fact that the Defendant has abused the Plaintiff throughout the litigation with his manipulation of the court process by his blatant disregard of the truth, pressing frivolous claims, wasting court time with witnesses that had at best merely uninformed opinions, causing drawn out conferences and examinations of witnesses that were not probative, making specious arguments and accusations including parent alienation, refusing to pay timely support payments until threatened with incarceration, refusing to help save the marital home from foreclosure, harassing and annoying the Plaintiff and J., refusing to pay his share of the court-ordered business evaluation which precluded the Plaintiff from demonstrating any potential increase in business’ value during the marriage, and by prolonging this case by creating unnecessary litigation, the court will award financial compensation to the Plaintiff (see id. at 850).14

Therefore, pursuant to the Court’s above consideration of the factors necessary to award an amount and duration of maintenance, and in order to do justice in this case and compensate the Plaintiff for some of the injuries that the Plaintiff has suffered as a result of the Defendant’s malicious, vexatious/abusive litigation, and as a sanction for the Defendant’s completely frivolous conduct throughout this case and certainly during this trial, the Court will award the Plaintiff ten years of maintenance payments. Furthermore, while normally the years and amounts paid during the pendente lite period are accounted for in formulating post-divorce maintenance, here, because of the Defendant’s own actions and vexatious litigation which purposefully attenuated this proceeding, and the need to compensate the Plaintiff, the Defendant will receive no credit for the approximately last 6 years of pendente lite payments. There is simply no other way to accomplish justice in this case as the Defendant’s malicious, egregious and conscience-shocking conduct toward the Plaintiff and the parties’ son J. needs to be addressed. While the Court could under these egregious circumstances equitably distribute all of the assets to the Plaintiff as a penalty (see Howard S. v. Lillian S., 14 NY3d 431, 436, 928 NE2d 399, 402, 902 NYS2d 17, 20 [2010]), it is necessary for future payment purposes to award the Defendant his business (which is addressed below).

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Footnote

14. The Defendant’s vexatious behavior in this case is akin to a prima facie tort or an abuse of process. A prima facie tort consists of four elements: (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful (Burns J.son Miller Summit & Spitzer v Lindner, 59 N.Y.2d 314, 332, 464 N.Y.S.2d 712, 451 N.E.2d 459 [1983]). An abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective (Lynn v McCormick, 153 A.D.3d 688, 688, 60 N.Y.S.3d 316, 317 [2d Dept 2017]).”