Surrogate Nora Anderson
The Appellate Division remanded the matter to decide the sanction to be imposed on appellant Fink, finding his appeals lacked a good faith basis, and were "entirely frivolous" under 22 NYCRR 120-1.1. Fink challenged legal services to be considered for sanction. The court found respondents’ motions were necessary and they substantially prevailed, thus, the value of counsel’s time would be included in the sanction. Fink challenged many of the requested fees contending no proof they were actually incurred. He argued the Special Referee "incurred" no fees as the law firm representing her worked pro bono hence, the value of the work done on her behalf should not factor in the sanction. The court rejected the argument noting case law instructed that the term "incurred" was not synonymous with "paid." It ruled nothing in the Appellate Division’s decision directed that an award of legal fees be limited to reimbursement for fees actually paid, noting it could not have intended appellant to benefit from any generosity counsel was willing to extend its client. Thus the sanction would include the reasonable value of work performed by appellees’ attorneys, ordering a hearing on whether legal fees incurred by respondents were reasonable.