RODRIGUES v. CAETANO (2008)

In an action to recover damages for slander, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered January 11, 2007, as granted that branch of the defendant's motion which was for an award of costs pursuant to 22 NYCRR 130-1.1 against him.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court providently exercised its discretion in granting that branch of the defendant's motion which was for costs against the plaintiff for engaging in frivolous conduct.   Conduct is frivolous if “it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][2] ).   Since the plaintiff admitted that after commencing the action he no longer wanted to pursue it, and took no steps to discontinue the action, awarding costs to the defendant to reimburse him for actual expenses and attorney's fees reasonably incurred to defend against and to obtain dismissal of the action was proper (see 22 NYCRR 130-1.1[a];  Moran v. Regency Savings Bank, F.S.B., 20 A.D.3d 305, 306-307, 799 N.Y.S.2d 29;  Timoney v. Newmark & Co. Real Estate, Inc., 299 A.D.2d 201, 202, 750 N.Y.S.2d 271;  Janitschek v. Trustees of Friends World College, 249 A.D.2d 368, 369, 671 N.Y.S.2d 490;  cf. Juron & Minzner, P.C. v. State Farm Ins. Co., 303 A.D.2d 463, 756 N.Y.S.2d 428).

Furthermore, the Supreme Court properly articulated the basis for its determination pursuant to 22 NYCRR 130-1.2.

The plaintiff's remaining contention is without merit.