Cain v. Segall , 833 N.Y.S.2d 914 ( 2007 )

In an action to recover damages for battery, the defendant appeals from an order of the Supreme Court, Kings County (Schack, J.), dated May 2, 2006, which denied, without a hearing, his motion to impose costs and sanctions on the plaintiff and/or her attorney for engaging in frivolous conduct within the meaning of 22 NYCRR 130-1.1.

Ordered that the order is affirmed, with costs.

Contrary to the defendant’s contentions on appeal, the Supreme Court did not improvidently exercise its discretion in denying, without a hearing, his motion to impose costs and sanctions on the plaintiff and/or her attorney for engaging in frivolous conduct within the meaning of 22 NYCRR 130-1.1 (cf. Hampton v Hampton, 261 AD2d 362 [1999]). The record does not support the defendant’s argument that the prosecution of this action to recover damages for civil battery, although ultimately unsuccessful, was frivolous (see generally Wende C. v United Methodist Church, N.Y. W. Area, 4 NY3d 293 [2005]; Laurie Marie M. v Jeffrey T.M., 159 AD2d 52 [1990], affd 77 NY2d 981 [1991]; PJI 3:3 [2006 Supp]). Spolzino, J.P., Krausman, Skelos and Dickerson, JJ., concur.