## Facts

- The Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York owned commercial premises at 198 Broadway in Manhattan.
- Henry Modell & Co., Inc. held a subtenancy and claimed a right to renew its sublease despite the master tenant’s decision not to renew the master lease.
- In 1982, the Appellate Division awarded the Church possession of the premises; in 1983, the Court of Appeals affirmed.
- After the 1983 affirmance, Modell filed multiple additional proceedings and motions seeking to avoid, undo, or delay enforcement of the possession judgment, including a separate declaratory-judgment action and motions to vacate based on asserted newly discovered evidence.
- More than seven years after the 1983 decision, Modell moved in the Court of Appeals to “recall and amend the remittitur,” relying on asserted new evidence and a new legal theory.
- The Church opposed and expressly requested sanctions under 22 NYCRR 130-1.1 to 130-1.5.

## Issues

1. Whether a motion to recall and amend the Court of Appeals remittitur, made more than seven years after the prior decision, is timely under 22 NYCRR 500.11(g)(3).
2. Whether filing an untimely, meritless motion as part of repeated post-judgment efforts to delay enforcement constitutes frivolous conduct warranting monetary sanctions under 22 NYCRR 130-1.1 to 130-1.5.
3. Whether an express request for sanctions in motion papers provides sufficient notice and opportunity to be heard, such that a separate formal hearing is unnecessary under 22 NYCRR 130-1.1(d).

## Decision

- The Court of Appeals dismissed Modell’s motion to recall and amend the remittitur as untimely under 22 NYCRR 500.11(g)(3).
- The Court imposed a $2,500 sanction on Modell under 22 NYCRR 130-1.1 to 130-1.5.
- The Court held that the Church’s express sanctions request provided adequate notice, making a separate hearing unnecessary under 22 NYCRR 130-1.1(d).

## Legal Principles

- A motion to recall or amend the Court of Appeals remittitur is subject to strict timeliness requirements under 22 NYCRR 500.11(g)(3) and is not a mechanism for belated relitigation of a final appellate disposition.
- Appellate courts may impose monetary sanctions for frivolous conduct under 22 NYCRR 130-1.1 to 130-1.5 when a filing is wholly without legal support and appears intended primarily to delay enforcement of an existing judgment.
- Due process for sanctions under 22 NYCRR 130-1.1(d) may be satisfied through notice in motion papers and an opportunity to respond in writing; a separate formal hearing is not required where the record supplies the basis for sanctions.

## Conclusion

The Court of Appeals refused to reopen its prior mandate because the motion to recall and amend the remittitur was filed years too late, and it sanctioned the movant for pursuing an unsupported, dilatory application after extensive prior litigation aimed at postponing enforcement of a long-final possession judgment.


Matter of Minister, Elders & Deacons of the Reformed Protestant Dutch Church of the City of N.Y. v. 198 Broadway, Inc., 76 N.Y.2d 411 (N.Y. 1990)