Opinion
1910.
December 2, 2003.
Order, Supreme Court, New York County (Louis York, J.), entered on or about October 31, 2002, which denied plaintiffs' motion for summary judgment dismissing defendants' counterclaim for sanctions and granted defendants' cross motion for a hearing into whether plaintiffs' commencement of a frivolous lawsuit should be sanctioned, unanimously modified, on the law, to grant plaintiffs' motion and deny defendants' cross motion with respect to defendant Chae Sone, and otherwise affirmed, without costs.
Morton Povman, for Plaintiffs-Appellants.
Brian W. Raum, for Defendants-Respondents.
Before: Tom, J.P., Saxe, Rosenberger, Marlow, JJ.
The lawsuit is frivolous as against defendant Kyung Kim Sone, against whom not a single allegation is set forth in the complaint, the affidavits that plaintiffs submitted in opposition to defendants' prior motion to dismiss, or in the affidavits that plaintiffs submitted in support of their instant motion to dismiss defendants' counterclaim for sanctions. Accordingly, it was a proper exercise of discretion to direct a hearing into whether plaintiffs' commencement of the action as against said defendant should be sanctioned ( see Greenfield v. Schultz, 251 A.D.2d 67, 68). However, the more specific allegations that plaintiffs made against defendant Chae Sone, although perhaps insufficient to give CPLR 3013 notice, do suffice to show that the lawsuit was not frivolously commenced as against him ( cf. LaRussa v. LaRussa, 232 A.D.2d 297), and we modify accordingly.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.