Behrins v. Campanella

138 A.D.3d 656, 27 N.Y.S.3d 880

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 2016
• Docket: 2014-11111
• Status: Published

Opinion

In an action, inter alia, to recover damages for fraud and breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Dollard, J.), dated August 25, 2014, as, upon reargument, vacated the determination in an order of the same court dated April 14, 2014, granting that branch of their motion which was for an award of costs and an attorney’s fee pursuant to 22 NYCRR 130-1.1, and thereupon denied that branch of their motion.

Ordered that the order dated August 25, 2014, is affirmed insofar as appealed from, with costs.

Contrary to the defendants’ contention, the plaintiffs’ conduct in this action was not frivolous (see 22 NYCRR 130-1.1; Vogel v Vogel, 128 AD3d 681, 685 [2015]). Accordingly, upon reargument, the Supreme Court properly vacated its prior determination awarding the defendants costs and an attorney’s fee pursuant to 22 NYCRR 130-1.1.

The parties’ remaining contentions are without merit.

Eng, P.J., Leventhal, Miller and LaSalle, JJ., concur.