Opinion
2013-11115, Index No. 3488/12.
05-11-2016
Ram KHADKA, et al., respondents, v. AMERICAN HOME MORTGAGE SERVICING, INC., appellant.
Hinshaw & Culbertson LLP, New York, N.Y. (Jason J. Oliveri, Schuyler B. Kraus, and Benjamin Noren of counsel), for appellant.
Hinshaw & Culbertson LLP, New York, N.Y. (Jason J. Oliveri, Schuyler B. Kraus, and Benjamin Noren of counsel), for appellant.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Queens County (Greco, Jr. J.), dated September 9, 2013, which denied its motion for summary judgment dismissing the complaint, an award of an attorney's fee, and the imposition of sanctions pursuant to 22 NYCRR 130–1.1. ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the Supreme Court properly denied that branch of its motion which was for summary judgment dismissing the complaint. In support of its motion, the defendant failed to make a prima facie showing of entitlement to judgment as a matter law. The defendant's submissions were insufficient to demonstrate the absence of any material issues of fact (see CPLR 3212[b] ; Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400 ; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Blair v. Otto Brehm, Inc., 54 A.D.3d 702, 863 N.Y.S.2d 751 ; Irving v. Great Atl. & Pac. Tea Co., 269 A.D.2d 358, 359, 702 N.Y.S.2d 864 ).
Similarly, the Supreme Court properly denied that branch of the defendant's motion which sought an award of an attorney's fee, as the defendant failed to establish its entitlement thereto (see generally Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 ; Griswold Special Care of N.Y., Inc. v. Executive Nurses Home Care, Inc., 66 A.D.3d 962, 963, 887 N.Y.S.2d 672 ).
The Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was to impose a monetary sanction, as the plaintiffs did not engage in frivolous conduct within the meaning of 22 NYCRR 130–1.1 (see Berkowitz v. 29 Woodmere Blvd. Owners', Inc., 135 A.D.3d 798, 23 N.Y.S.3d 352 ; Keyspan Generation, LLC v. Nassau County, 118 A.D.3d 949, 954, 991 N.Y.S.2d 46 ).
RIVERA, J.P., DILLON, BALKIN and SGROI, JJ., concur.