Opinion
2009-377 Q C.
Decided February 2, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 17, 2008. The order, insofar as appealed from as limited by the brief, (1) denied the branch of defendant's motion seeking the imposition of sanctions and an award of costs against plaintiff and plaintiff's attorney, Charles Zolot, Esq., and (2) upon granting plaintiff's cross motion for leave to discontinue the action, failed to condition the discontinuance of the action on plaintiff's payment of the costs and attorney's fees incurred by defendant in this action.
ORDERED that the order, insofar as appealed from, is modified by providing that plaintiff's cross motion for leave to discontinue the action is granted on condition that plaintiff pay defendant the costs of the action; as so modified, the order, insofar as appealed from, is affirmed with $10 costs to defendant.
PRESENT: WESTON, J.P., GOLIA and STEINHARDT, JJ.
In this action to recover the principal sum of $21,000 as a result of defendant's failure to pay for services plaintiff rendered pursuant to a home improvement contract, plaintiff alleged in his bill of particulars that he had received a "temporary license [home improvement] from the Department of Consumer Affairs on April 25, 2007 under license number 1268773." Pursuant to discovery demands, plaintiff's attorney, Charles Zolot, Esq., furnished what was purported to be said temporary license to defendant's counsel. However, it is evident from the document that it is not a license. Although defendant's counsel, in numerous correspondences with plaintiff's counsel, suggested that plaintiff discontinue the action, no such discontinuance was forthcoming. Consequently, defendant moved to dismiss the complaint on the ground that plaintiff was not a licensed home improvement contractor and, thus, was not entitled to recover on said contract ( see CPLR 3015 [e]). Defendant also sought an award of costs and the imposition of sanctions against plaintiff, for making the material false statement that he possessed a temporary license, and against plaintiff's attorney for his conduct in continuing to litigate a frivolous action. Plaintiff cross-moved for leave to discontinue the action. Defendant argued in opposition to the cross motion that the action should be discontinued only on condition plaintiff pay the costs and legal fees incurred by defendant in defending this action. Insofar as is relevant to this appeal, the Civil Court denied the branch of defendant's motion seeking an award of costs and the imposition of sanctions, and unconditionally granted plaintiff's cross motion for leave to discontinue the action.
Under the circumstances presented, the Civil Court should have conditioned the granting of plaintiff's cross motion for leave to discontinue the action on plaintiff paying defendant the costs of the action. We find that the imposition of sanctions against plaintiff and/or her attorney is not warranted.
Weston, J.P., Golia and Steinhardt, JJ., concur.