LEWIS v. ARBUCCI (2004)

Supreme Court, Appellate Division, Second Department, New York.

Lisa LEWIS, appellant, v. Robert ARBUCCI, et al., respondents, et al., defendants.

Decided: October 12, 2004

FRED T. SANTUCCI, J.P., NANCY E. SMITH, SONDRA MILLER, BARRY A. COZIER, and STEVEN W. FISHER, JJ.

Frederic Lewis, New York, N.Y., for appellant. Wayne P. Stix, White Plains, N.Y., for respondents.

In an action, inter alia, to recover damages for nuisance, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered January 5, 2004, which denied her motion for costs and an award of an attorney's fee pursuant to CPLR 8303-a.

ORDERED that the order is affirmed, with costs.

The Supreme Court correctly denied the plaintiff's motion for costs and an award of an attorney's fee pursuant to CPLR 8303-a. The plaintiff failed to demonstrate that the conduct of the defendants Robert Arbucci and Rosemary Rogers (hereinafter the respondents) and their attorney in asserting a counterclaim sounding in the tort of intentional infliction of emotional distress was frivolous in that it was commenced or continued in bad faith without any reasonable basis in law or fact (see CPLR 8303-a[c][ii] ). To the contrary, the respondents' proof submitted in opposition to the plaintiff's motion to dismiss the counterclaim demonstrated a reasonable basis for asserting it (see Warner v. Druckier, 266 A.D.2d 2, 697 N.Y.S.2d 610). Accordingly, the motion was properly denied.

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