Cain v. Segall

In an action to recover damages for battery, the defendant appeals from an order of the Supreme Court, Kings County (Schack, J.), dated May 2, 2006, which denied, without a hearing, his motion to impose costs and sanctions on the plaintiff and/or her attorney for engaging in frivolous conduct within the meaning of 22 NYCRR 130-1.1. Ordered that the order is affirmed, with costs. 676 Contrary to the defendant’s contentions on appeal, the Supreme Court did not improvidently exercise its discretion in denying, without a hearing, his motion to impose costs and sanctions on the plaintiff and/or her attorney for engaging in frivolous conduct within the meaning of 22 NYCRR 130-1.1 (cf. Hampton v Hampton, 261 AD2d 362 [1999]). The record does not support the defendant’s argument that the prosecution of this action to recover damages for civil battery, although ultimately unsuccessful, was frivolous (see generally Wende C. v United Methodist Church, N.Y. W. Area, 4 NY3d 293 [2005]; Laurie Marie M. v Jeffrey T.M., 159 AD2d 52 [1990], affd 77 NY2d 981 [1991]; PJI 3:3 [2006 Supp]). Spolzino, J.P., Krausman, Skelos and Dickerson, JJ., concur.