That Court Signed OSC Does Not Mean that Motion Was Not Frivolous

On December 19, 2019, the First Department issued a decision in Matter of Citigroup Global Mkts., Inc. v. Fiorilla, 2019 NY Slip Op. 09107, holding that just because a judge signed an order to show cause does not mean that the motion was not frivolous, explaining:

Fiorilla contends that Supreme Court's signing of the order to show cause by which he made the Citigroup II vacatur application signifies Supreme Court's assessment that the application was not utterly meritless, and therefore not frivolous. This contention is unavailing. Assuming that Supreme Court subjected the order to show cause application to at least a minimal quantum of scrutiny sufficient to ensure that it could grant the relief sought, Supreme Court's signing of the order did not connote any approval of the substance of the motion. Instead, the most that can be said on the existing paper record is that the signing of the order to show cause signified the court's agreement that, if everything in the papers were accurate, it would be possible to grant Fiorilla the relief he sought. Indeed, the frivolousness of the papers is not apparent on their face. To the contrary, their frivolousness becomes evident only when taken in context, and only with a knowledge of the history of the parties' dispute. Such a determination, particularly in this procedurally complex dispute, would require a level of merits scrutiny that is not warranted on an application for an order to show cause, which, in the end, is simply a substitute for a notice of motion as a device for bringing on a special proceeding.

(Internal quotations and citations omitted).

Part of being a good litigator is thinking of winning arguments other lawyers miss. However, as this decision shows, courts have little patience for lawyers who cross the line from creative to making frivolous arguments. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client has a question regarding whether an argument has crossed the line from creative to sanctionable.