NORTH FORK PRESERVE INC v. KAPLAN (2007)

In a shareholder's derivative action, inter alia, to recover damages for fraud, waste of corporate assets, and breach of fiduciary duty, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated May 6, 2005, as denied those branches of their cross motion which were for an award of an attorneys' fee and costs, and for the imposition of sanctions pursuant to 22 NYCRR 130-1.1 against the plaintiffs and their attorney.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Although the plaintiffs and their attorney made five motions, all by orders to show cause, within a period of five months, the motions did not seek the same relief.   Moreover, there was a legal and factual basis for each motion.   Consequently, the Supreme Court providently exercised its discretion in denying those branches of the defendants' cross motion which were for an award of an attorneys' fee and costs, and for the imposition of sanctions pursuant to 22 NYCRR 130-1.1 against the plaintiffs and their attorney (see Kovach v. Hurlburt, 288 A.D.2d 727, 729, 733 N.Y.S.2d 515;  Reid & Priest v. Realty Asset Group, 250 A.D.2d 380, 673 N.Y.S.2d 81;  Watson v. City of New York, 178 A.D.2d 126, 127-128, 576 N.Y.S.2d 864).