Kaplon-Belo Assoc., Inc. v D'Angelo

Kaplon-Belo Assoc., Inc. v D'Angelo 2010 NY Slip Op 09363 [79 AD3d 931] December 17, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Kaplon-Belo Associates, Inc., Respondent,
v
Frank D'Angelo et al., Appellants.

—[*1] The Nolan Law Firm, New York, N.Y. (William Paul Nolan of counsel), for appellants.

Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (E. Christopher Murray of counsel), for respondent.

In an action to recover a real estate brokerage commission, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), entered January 14, 2010, as denied their cross motion pursuant to 22 NYCRR 130-1.1 for the imposition of a sanction upon the plaintiff.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendants' contention, the Supreme Court providently exercised its discretion in denying their cross motion for the imposition of a sanction upon the plaintiff. The defendants failed to demonstrate that the plaintiff's conduct was frivolous within the meaning of 22 NYCRR 130-1.1 (c) (see 22 NYCRR 130-1.1; Riley v ISS Intl. Serv. Sys., 304 AD2d 637 [2003]; Curcio v Hogan Coring & Sawing Corp., 303 AD2d 357, 358-359 [2003]; Barco Auto Leasing Corp. v Thornton, 298 AD2d 341 [2002]; cf. Mascia v Maresco, 39 AD3d 504, 505-506 [2007]; Greene v Doral Conference Ctr. Assoc., 18 AD3d 429 [2005]). Mastro, J.P., Fisher, Roman and Sgroi, JJ., concur.