Avoiding Frivolous Lawsuits: What Every Attorney Should Know
8.24.2026
Frivolous lawsuits have serious consequences. They waste a judge’s time, burden court resources and make parties with legitimate cases wait for their day in court. The legal community is well aware of these consequences, and New York’s Rules of Professional Conduct warn attorneys not to engage in misconduct. The courts have taken steps too: Judges can impose monetary penalties on attorneys (and their clients) who cross the line.
Despite all this, some attorneys continue to file lawsuits that judges find lacking in merit. The question is why?
The answer is that no two cases are alike, and different circumstances can result in different outcomes – what one court sees as frivolous another might see as simply pushing the envelope. Thus, attorneys should familiarize themselves with past cases to see what the court viewed as misconduct and why. This article discusses a sampling of such cases and what the New York Rules of Professional Conduct have to say about attorney advocacy.[1]
Cases of Frivolous Conduct
Conduct is considered frivolous if:
“(1) It is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) … is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) … asserts material factual statements that are false.”[2]
The court, in its discretion, may impose sanctions on a party for engaging in frivolous conduct and award to any party costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees. Such sanctions may be imposed against either an attorney or a party to the litigation, or against both, and can be very costly.[3]
Here are some examples of blatantly frivolous conduct that led to the imposition of sanctions and attorney’s fees.
Matter of Ruth S.[4] was a consolidated guardianship proceeding and action involving a dispute between siblings – the appellants (Sharon and Judith) and respondent (Bonnie) – that had continued for more than 15 years with multiple appeals and money judgments awarding Bonnie her legal fees. In 2017, the New York Supreme Court issued an order that, inter alia, directed that the appellants are “enjoined from filing further motions [in the proceeding] with this Court, unless they obtain prior Court approval.” At some time thereafter, Sharon moved for “leave to resettle the judgment fee awarded to Bonnie,” and Bonnie cross-moved, among other things, for attorneys’ fees and costs against Sharon in connection with a prior appeal.
The Supreme Court denied Sharon’s motion and granted Bonnie’s cross-motion, finding “Sharon filed her motion notwithstanding the court’s ‘very clear’ order dated June 29, 2017, requiring that the appellants ‘seek permission of the court prior to filing’ any motion.” The court issued two money judgments in Bonnie’s favor and granted Bonnie’s cross-motion for an award of attorneys’ fees and costs against Sharon for engaging in frivolous conduct by continuing to litigate issues that had already been decided, “requiring Bonnie to defend against a motion that was, at best, completely without merit” and raising arguments that “were or could have been raised on prior appeals and lack merit in either fact or law.” Note that the award in favor of Bonnie was only against the appellants and not their lawyer.
In Finley v. Finley,[5] the defendant “frivolously continued to pursue a motion after he and his counsel became aware that the factual predicate for the requested relief no longer existed.” The court “providently exercised its discretion to impose sanctions against the defendant for engaging in [such] frivolous conduct.”
In Vacation Village Homeowners’ Ass’n Inc. v. Mordkofsky,[6] defendants failed to comply with an order of the court settling the record on appeal. In addition to dismissal of their appeal, sanctions in the amount of $1,000 were imposed on defendants.
In Weissman v. Weissman,[7] the court awarded counsel fees to the plaintiff, having found that the defendant “was pressing a frivolous claim, thereby abusing the judicial process and creating unnecessary litigation.”
In Nachbaur v. American Transit Ins. Co.,[8] the Appellate Division unanimously (1) affirmed the trial court’s imposition of a $5,000 sanction and reasonable attorneys’ fees to be awarded against the plaintiff for commencing frivolous litigation, and (2) imposed a $5,000 sanction on the plaintiff’s attorney for prosecuting a frivolous appeal.
This action arose out of a car accident in which the plaintiff, a pedestrian, was allegedly injured. The plaintiff sought recovery from the driver’s insurance company for bad faith in refusing to settle for an amount above the policy limit. The complaint was properly dismissed since the plaintiff was not an intended beneficiary of the driver’s policy and the insurance company offered to settle for the policy limit.
The Appellate Division found sanctions imposed by the court below constituted a proper exercise of discretion in light of the plaintiff’s and his attorney’s repetitive and meritless motions, including a similar motion in the underlying personal injury action “for a default for failure to appear at a deposition that was interposed before the deposition was even scheduled, the frivolousness of the verified complaint and the utterly useless motion papers submitted by plaintiff’s attorney.”[9]
The Appellate Division imposed additional sanctions and awarded attorney’s fees for the prosecution of the plaintiff’s frivolous appeal.
The 4½- and 3½-page appellate briefs submitted by the plaintiff’s attorney, completely devoid of relevant discussion, are vividly reflective of the appeal’s utter lack of even arguable merit. In addition, the plaintiff’s attorney replicates the conduct sanctioned in Supreme Court by repeating the insult directed at opposing counsel; adds to that insult with new invective; makes baseless, serious accusations against the motion court; makes unsupported accusations against the defendant; seriously mischaracterizes the record and makes no reference to recent adverse authority.
The Rules of Professional Conduct impose a fundamental ethical responsibility on an attorney to disclose adverse controlling legal authority to a court. This made the plaintiff’s attorney’s failure to cite adverse authority “especially glaring” since he had represented the losing party in another case, decided a few weeks before the plaintiff’s reply brief was due, which precisely addressed five out of six of the plaintiff’s causes of action and, unless and until overruled was controlling authority that the plaintiff’s attorney was obligated to bring to the attention of the court.[10]
The Appellate Division also took note of the plaintiff’s lawyer’s “history of relentlessly pursuing meritless litigation, including frivolous appeals.” For example, in Moore v. Time, Inc.,[11] the plaintiff’s lawyer appealed from the dismissal of his complaint despite the magistrate judge’s strong admonition that his complaint presented no non-frivolous claims. His appellate brief left the reader “without a hint of the legal theory proposed as a basis for reversal.” It cited no case law to support his argument and failed to contain the required contentions of the appellant on the issues presented, and the reasons therefore, with citations to the authorities, statutes and parts of the record relied on. The court imposed a sanction of $1,000 in attorneys’ fees as well as double costs to deter future frivolous appeals.
In Cruz v. Integrated Health Admin. Services, Inc.,[12] where the 75-year-old plaintiff’s motion for a trial preference based on his age was granted, the court had found defense counsel was “playing fast and loose in derogation of his obligations of candor posited in the Rules of Professional Conduct” and failed to offer “even a single valid reason why the Court, in its discretion, should not [have] grant[ed]” the plaintiff’s application. Although it is a “fundamental ethical responsibility on an attorney to disclose adverse controlling legal authority to a court,” defense counsel, in his answer, “failed to mention the law and persuasive authority.” The failure to do so resulted in the defendant and his counsel being required to appear at a hearing to determine if the defense counsel had engaged in frivolous conduct and, if so, whether the appropriate remedy should be the imposition of sanctions, including attorney’s fees, upon the defendants and/or their counsel.[13]
Misleading Briefs
A brief that misstates the facts, mischaracterizes the issues, improperly injects matter not in the record, omits reference to adverse controlling authorities, quotes material out of context or is found to be overreaching and unfair in other respects will destroy the author’s credibility, thereby seriously impairing the attorney’s reputation. An attorney’s reputation for integrity (or lack thereof) is as important as any argument made or case cited in a brief or when appearing before the court.
A brief “permeated with [wholly unjustifiable] accusations and criticisms directed against [opposing] counsel” will be “stricken and expunged from the records” of the court.[14] In Scholing v. O’Connor,[15] the appellate brief contained “accusations and criticisms directed against defendants’ trial counsel,” was deemed to be “wholly unjustifiable” and “removed from the files of the court.”
In Golden v. Golden,[16] it was brought to the attention of the Appellate Division that the defendant’s attorney’s brief contained references and quotations that did not reflect correctly the contents of a trial exhibit. The court believed they were “intended to mislead” it and “sternly disapprove[d] of the conduct of the attorney in submitting a misleading brief to the court.”
This is equally true of briefs or memoranda submitted to the trial court. A misleading brief gives the court a negative (and sometimes long-lasting) unfavorable impression of its author. Over 100 years ago, in Ryan v. Cortland Carriage Goods Co.,[17] the court, upon finding the respondent’s brief contained numerous misstatements of facts, reversed and wrote, in words still applicable today:
“The most charitable view that could be given the counsel’s conduct with reference to some of the statements is that he [sic]fails to see the distinction between inferences which he seeks to draw from the evidence and facts testified to by witnesses, and that he makes the assertion of his inferences as facts. This is wholly unwarranted. A brief of this character, instead of being an aid to the court in determining the questions involved, furnishes no aid whatever, because suspicion must naturally rest upon every statement asserted as a fact in it and little reliance be placed upon a brief so made, and the counsel submitting it is deserving of the severest censure.”
New York’s appellate courts periodically find it necessary to remind counsel that “the function of an appellate brief is to assist, not mislead the court.” Where counsel for the appellant improperly included in its brief matters not part of the record, mischaracterized events and fabricated facts and issues, the court “admonish[ed] counsel that such attempts to mislead the court are in direct derogation of their professional obligations and will not be tolerated.”[18]
When presenting legal authorities and quoting from decisions, it should always be remembered that “[o]pinions must be read in the setting of the particular cases and as the product of preoccupation with their special facts.”[19] The “language of any opinion must be confined to the facts before the court” and “[n]o opinion is an authority beyond the point actually decided.”[20]
In Baylis v. Wood,[21] the court made clear that an attorney of record whose name appears on the brief, not only the one orally arguing the case, will be subject to the “severest censure” if the brief does not fairly state the facts and the issues to be determined. The court “cannot be too emphatic in [its] disapproval. A brief which does not fairly state the facts and the issues to be determined is of no aid to the court.”
Counsel must also remember that they do not help their case by attaching to their briefs or referring to matters not found in the record. Such matters will not be considered by the court and invites censure. In R & J Yorek, Inc. v. MCL Constr., Inc.,[22] the court stated, “We decline to consider matters in the parties’ briefs which are de hors the record on appeal.”
This important point was emphasized again in Merl v. Merl, where appellant’s counsel improperly injected matters that are de hors the record, mischaracterized events and fabricated facts and issues. Such misconduct gained nothing. The respondent’s motion to strike the matter de hors the record was granted and the order appealed from affirmed. Counsel’s future briefs and oral arguments would probably have been viewed with suspicion by the court.
The offending counsel was fortunate to have escaped with only an admonition in the court’s decision that “such attempts to mislead the court are in direct derogation of their professional obligations and will not be tolerated.”
Some lawyers who would not dream of misstating facts in their briefs do not realize that our adversarial system does not allow them to withhold adverse legal authorities from the court, hoping neither their opponents nor the court will find them. That is a mistake. Opposing counsel or a judge’s law clerk is bound to find the applicable authority. Attorneys “are always under an ethical obligation to cite applicable law to the court. … An attorney’s failure to cite such authority is an abdication of responsibility, undermining the adversarial process and burdening the court unnecessarily.”[23]
The “function of an appellate brief is to assist, not mislead, the court” and “[c]ounsel have an affirmative obligation to advise the court of adverse authorities, though they are free to urge their reconsideration.”[24] In Nachbaur v. American Transit Co.,[25] the court stated, “We particularly disapprove of the failure of plaintiff’s attorney to cite adverse authority.”
In Matter of Cicio,[26] the city’s brief did not cite several directly controlling cases that the city was involved in and had lost. The Appellate Division found this “most disturbing and clearly inexcusable” and stated that “[h]ad even a modicum of thought and research been given to this case, it would have been self-evident to the city that its position was untenable, and this court and the taxpayers would have been spared the costs of a frivolous appeal.”
It should also be borne in mind that appellate review is limited to the record made on a motion or at trial. Except for matters that may be judicially noticed, “new facts may not be injected at the appellate level.”[27] And a court may only apply judicial notice to matters of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof.[28]
While a court may take judicial notice of its records and files, it is not required to do so and “it may ‘not take judicial notice of a ‘fact’ which is controverted’ … Thus, the mere presence of a document in a court file does not mean that judicial notice properly can be taken of any factual material asserted in the document.”[29]
In Summary
The examples herein of frivolous conduct and misleading briefs are not representative of the overwhelming majority of cases in which capable and conscientious counsel on both sides appear before trial and appellate judges who strive to provide the parties with a fair trial and careful consideration of all the arguments made on appeal.
Counsel and their clients who ignore the rules governing advocacy to gain some perceived advantage in the litigation are more than likely to be admonished and sanctioned by the court, have any “victory” so gained overturned, and have their reputation tarnished.
Thomas R. Newman of Duane Morris LLP has wide experience in insurance and reinsurance arbitrations and appellate practice and handled hundreds of appeals in both state and federal courts in New York and elsewhere.
Endnotes:
[1] The rules governing advocacy are found at 22 N.Y.C.R.R. 1200.3.1–3.9.
[2] DeSimone v. Northport-E. Northport Union Free Sch. Dist., 241 A.D.3d 872, 874, 237 N.Y.S.3d 739 (2d Dep’t 2025); 22 N.Y.C.R.R. §130-1.1(c).
[3] The rules governing advocacy are found at 22 N.Y.C.R.R. 1200.3.1–3.9.
[4] Matter of Ruth S., 238 A.D.3d 1051, 1054–55, 235 N.Y.S.3d 608, 612 (2d Dep’t 2025).
[5] Finley v. Finley, 233 A.D.3d 654, 655, 223 N.Y.S.3d 226, 229 (2d Dep’t 2024).
[6] Vacation Village Homeowners’ Ass’n Inc. v. Mordkofsky, 265 A.D.2d 746, 747, 698 N.Y.S.2d 739, 740 (3d Dep’t 1999).
[7] Weissman v. Weissman, 116 A.D.3d 848, 850, 985 N.Y.S.2d 93 (2d Dep’t 2014).
[8] Nachbaur v. American Transit Ins. Co., 300 A.D.2d 74, 752 N.Y.S.2d 605 (1st Dep’t 2002).
[9] 300 A.D.2d at 75, 752 N.Y.S.2d at 607.
[10] 300 A.D.2d at 76, 752 N.Y.S.2d at 607–08.
[11] Moore v. Time, Inc, 180 F.3d 463 (2d Cir. 1999).
[12] Cruz v. Integrated Health Admin. Services, Inc., 56 Misc. 3d 654, 660, 53 N.Y.S.3d 497, 501–02 (N.Y. Sup. Ct. 2017).
[13] 56 Misc. 3d at 661-662, 53 N.Y.S.3d at 502–03.
[14] Matter of Reynolds, 23 A.D.2d 623, 257 N.Y.S.2d 368, 369 (4th Dep’t 1965).
[15] Scholing v. O’Connor, 209 App. Div. 839, 204 N.Y.S. 777 (3d Dep’t 1924).
[16] Golden v. Golde, 37 A.D.2d 578, 323 N.Y.S.2d 714, 715 (2d Dep’t 1971).
[17] Ryan v. Cortland Carriage Goods Co., 133 App. Div. 238 A.D.3d 1051 467, 470–71, 118 N.Y.Supp. 56, 58 (3d Dep’t 1909).
[18] Merl v. Merl, 128 A.D.2d 685, 686, 513 N.Y.S.2d 184 (2d Dep’t 1987).
[19] Dannan Realty Corp. v. Harris, 5 N.Y.S.2d 317, 322 (1959).
[20] Dougherty v. Equitable Life Assur. Soc. of U.S., 266 N.Y. 71, 88 (1934).
[21] Baylis v. Wood , 246 App. Div. 779, 284 N.Y.Supp 109, 110 (2d Dep’t 1935).
[22] R & J Yorek, Inc. v. MCL Constr., Inc., 173 A.D.2d 531, 570 N.Y.S.2d 131 (2d Dep’t 1991).
[23] Matter of Cicio v. City of New York, 98 A.D.2d 38, 40, 469 N.Y.S.2d 467 (2d Dep’t 1983).
[24] Merl v. Merl, 128 A.D.2d 685, 686, 513 N.Y.S.2d 184 (2d Dep’t 1987).
[25] Nachbaur v. American Transit Co., 300 A.D.2d 74, 76–77, 752 N.Y.S.2d 605, 607–08 (1st Dep’t 2002).
[26] Matter of Cicio v. City of New York, 98 A.D.2d 38, 40, 469 N.Y.S.2d 467 (2d Dep’t 1983).
[27] Regina v. Friedman, 272 A.D.2d 461, 462, 707 N.Y.S.2d 674, 675 (2d Dep’t 2000).
[28] Walker v. City of New York, 46 A.D.3d 278, 282, 847 N.Y.S.2d 173, 176-77 (1st Dep’t 2007).
[29] Id.
