| Khadka v American Home Mtge. Servicing, Inc. |
| 2016 NY Slip Op 03711 [139 AD3d 808] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| Ram Khadka et al., Respondents, v AmericanHome Mortgage Servicing, Inc., Appellant. |
Hinshaw & Culbertson LLP, New York, NY (Jason J. Oliveri, Schuyler B.Kraus, and Benjamin Noren of counsel), for appellant.
In an action, inter alia, to recover damages for breach of contract, the defendantappeals from an order of the Supreme Court, Queens County (Greco, Jr. J.), datedSeptember 9, 2013, which denied its motion for summary judgment dismissing thecomplaint, an award of an attorney's fee, and the imposition of sanctions pursuant to 22NYCRR 130-1.1.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the Supreme Court properly denied thatbranch of its motion which was for summary judgment dismissing the complaint. Insupport of its motion, the defendant failed to make a prima facie showing of entitlementto judgment as a matter law. The defendant's submissions were insufficient todemonstrate the absence of any material issues of fact (see CPLR 3212 [b];Ayotte v Gervasio, 81 NY2d 1062 [1993]; Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; Blair vOtto Brehm, Inc., 54 AD3d 702 [2008]; Irving v Great Atl. & Pac. TeaCo., 269 AD2d 358, 359 [2000]).
Similarly, the Supreme Court properly denied that branch of the defendant's motionwhich sought an award of an attorney's fee, as the defendant failed to establish itsentitlement thereto (see generally Hooper Assoc. v AGS Computers, 74 NY2d487, 491 [1989]; GriswoldSpecial Care of N.Y., Inc. v Executive Nurses Home Care, Inc., 66 AD3d 962,963 [2009]).
The Supreme Court providently exercised its discretion in denying that branch of thedefendant's motion which was to impose a monetary sanction, as the plaintiffs did notengage in frivolous conduct within the meaning of 22 NYCRR 130-1.1 (see Berkowitz v 29 WoodmereBlvd. Owners', Inc., 135 AD3d 798 [2016]; Keyspan Generation, LLC v Nassau County, 118 AD3d949, 954 [2014]). Rivera, J.P., Dillon, Balkin and Sgroi, JJ., concur.