Kopach v. Olympia & York

Order, Supreme Court, New York County (William Keniry, J.), entered on or about December 13, 1993, which granted defendant Nielsen-Elefante Nurseries’ motion for sanctions against plaintiffs’ attorneys in the amount of $7,735, and awarded $100 costs to defendant’s liability insurer, unanimously reversed, on the law, the facts, and in the exercise of discretion, and the sanction vacated, without costs.

The IAS Court erred in awarding sanctions against plaintiff’s counsel pursuant to CPLR 8303-a for commencing "frivolous” litigation, since, prior to trial, the court had denied Nielsen’s summary judgment motion on grounds that there were genuine issues of material fact as to this defendant’s negligence requiring resolution at trial (see, Rittenhouse v St. Regis Hotel Joint Venture, 180 AD2d 523; see also, Hinckley v Resciniti, 159 AD2d 276). Concur—Sullivan, J. P., Rosenberger, Wallach, Asch and Williams, JJ.