Barrera v. Barrera

190 A.D.2d 667, 594 N.Y.S.2d 619, 1993 N.Y. App. Div. LEXIS 792

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1993
• Status: Published

Opinion

— In a proceeding, inter alia, to modify the child support provisions of a judgment of divorce entered in the State of Florida, the petitioner appeals from an order of the Supreme Court, Queens County (Nahman, J.), dated December 5, 1990, which (1) denied her motion for an upward modification of child support, and (2) granted the respondent’s cross motion (a) to dismiss the proceeding pursuant to CPLR 3211 (a) (4), (b) for visitation with the infant issue of the marriage from July 14, 1991, through July 28, 1991, and (c) for sanctions pursuant to 22 NYCRR 130-1.1 (b), in the amount of $500.

Ordered that the order is modified, as a matter of discretion, by deleting the provision thereof awarding sanctions pursuant to 22 NYCRR 130-1.1 (b), and substituting therefor a provision denying the branch of the cross motion which was for sanctions in its entirety; as so modified, the order is affirmed, without costs or disbursements.

CPLR 3211 (a) (4) vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties based on the same cause of action (see, Whitney v Whitney, 57 NY2d 731, 732). Under the circumstances, dismissal was a proper exercise of discretion. However, the sanction awarded pursuant to 22 NYCRR part 130 was improper, since the appellant’s motion was not frivolous (see, 22 NYCRR 130-1.2; see also, Nowak v Walden, 187 AD2d 418).

We have considered the appellant’s remaining contention and find it to be without merit. Mangano, P. J., Rosenblatt, Ritter and Santucci, JJ., concur.