Einhorn Barbarito Attorneys Secure Reversal of Frivolous Litigation Sanctions Imposed Against a Law Firm in Published Appellate Division Opinion

Einhorn, Barbarito, Frost, Botwinick, Nunn & Musmanno, PC is pleased to announce that attorneys Bonnie C. Frost, Matheu D. Nunn, and Jennifer Fortunato successfully obtained a reversal of frivolous litigation sanctions totaling more than $208,000 imposed against their client, the law firm of Ventura, Miesowitz and Keough, PC, (Firm) in a published opinion issued on August 7 by the New Jersey Appellate Division. The case is Fioravante v. Fioravante, Nos. A-3587-23, A-3603-23, A-3771-23 (N.J. Super. Ct. App. Div. Aug. 7, 2026).

The matter arose from a contested matrimonial litigation in Hudson County in which the opposing party sought to enforce a postnuptial agreement against a client of James Vigliotti who was Of Counsel to the Firm. The Firm contended that they were not served with notice or afforded due process and that Vigliotti practiced independent of the Firm. After a plenary hearing, the family court not only enforced the agreement but imposed frivolous litigation sanctions jointly and severally against the opposing party’s attorney, James A. Vigliotti, under the Frivolous Litigation Statute (N.J.S.A. 2A:15-59.1) and Rule 1:4-8. The Court ordered Vigliotti to pay more than $208,000 in attorneys’ fees and found that the Firm was vicariously liable under Rule 1:4-8 (b)(3).

On appeal, Frost, Nunn, and Fortunato argued that the family court erred in imposing frivolous litigation sanctions. In a published opinion authored by Judge Augostini and joined by Judges Sumners and Susswein, the Appellate Division agreed, vacating the sanctions in their entirety on two independent grounds:

1. The Frivolous Litigation Statute did not apply. The court held that because the Frivolous Litigation Statute applies only to frivolous pleadings, not motions, and the divorce complaint was not frivolous in its entirety, the statute could not support the sanctions imposed in the context of a pre-judgment plenary hearing on a cross-motion.
2. The safe-harbor notices were fatally deficient. The court found that the notices sent by opposing counsel failed to adequately alert the attorney and the Firm that fees would be sought against them personally, did not describe the specific conduct alleged to violate the Rule, and were never served directly on the Firm – all in violation of Rule 1:4-8’s strict compliance requirements.

The Appellate Division emphasized that frivolous litigation sanctions must be “interpreted restrictively” and “awarded only in exceptional cases,” reinforcing the principle that the right of access to the courts should not be unduly infringed.

The Firm’s Appellate Practice Group is chaired by Partner Bonnie C. Frost and Managing Partner Matheu D. Nunn. Jennifer Fortunato is a Partner in the firm’s Family/Matrimonial Practice Group.