Rosenbaum v. Boulder Ridge Homeowners Ass'n

—In an action, inter alia, to recover damages for fraud, the plaintiff appeals from so much of a judgment of the Supreme Court, Westchester County (Scarpino, J.), entered December 7, 1999, as dismissed the complaint insofar as asserted against Reiffman & Blum and awarded it costs, including an attorney’s fee, pursuant to 22 NYCRR 130-1.1 (b) in the total amount of $11,000. Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the respondent costs, including an attorney’s fee; as so modified, the judgment is affirmed insofar as appealed from, with costs to the respondent. The Supreme Court properly granted summary judgment to the respondent. After the respondent made out a prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether it knowingly made false representations to him concerning the premises, an essential element to his claim sounding in fraud (see, Rosenbaum v Boulder Ridge Homeowners Assn., 276 AD2d 615; C.P. J. Inc. v 234 High Seas Rest. Corp., 260 AD2d 524, 525). However, the award of costs, including an attorney’s fee, was improper, as the plaintiff’s conduct was not frivolous (see, 22 NYCRR 130-1.1 [c]; Matter of Barrera v Barrera, 190 AD2d 667). Friedmann, J. P., Goldstein, Feuerstein and Crane, JJ., concur.