Kaplon-Belo Associates, Inc., respondent, v. Frank D'Angelo, et al., appellants. (2010)

Submitted-November 29, 2010

DECISION & ORDER

In an action to recover a real estate brokerage commission, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), entered January 14, 2010, as denied their cross motion pursuant to 22 NYCRR 130-1.1 for the imposition of a sanction upon the plaintiff.

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

Contrary to the defendants' contention, the Supreme Court providently exercised its discretion in denying their cross motion for the imposition of a sanction upon the plaintiff.   The defendants failed to demonstrate that the plaintiff's conduct was frivolous within the meaning of 22 NYCRR 130-1.1(c) (see 22 NYCRR 130-1.1;  Riley v. ISS Intl. Serv. Sys., 304 A.D.2d 637;  Curcio v Hogan Coring & Sawing Corp., 303 A.D.2d 357, 358-359;  Barco Auto Leasing Corp. v. Thornton, 298 A.D.2d 341;  cf.  Mascia v. Maresco, 39 AD3d 504, 505-506;  Greene v Doral Conference Ctr. Assoc., 18 AD3d 429).

MASTRO, J.P., FISHER, ROMAN and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court