Lucheux v William Macklowe Co. LLC, 2018 NY Slip Op 07971 [166 AD3d 519]

November 20, 2018

Appellate Division, First Department

[*1]

Angelena Lucheux, Appellant, et al., Plaintiff,

v

William Macklowe Company LLC et al., Defendants, and Elite Terrazzo Flooring, Inc., Respondent.

Peter H. Paretsky, Attorney at Law, PLLC, New York, (Peter H. Paretsky of counsel), for appellant.

Correia, King, Fodera, McGinnis & Liferiedge, New York (Jose M. Gomez of counsel), for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered May 16, 2017, which, to the extent appealed from, denied plaintiff’s motion for sanctions against defendant Elite Terrazzo Flooring, Inc. (Elite), unanimously affirmed, without costs.

In this slip and fall action, defendant Elite cross-moved for summary judgment on the ground that other defendants, who cleaned up the lobby floor after Elite’s workers left, were an intervening cause that broke the causal connection between Elite’s work on the lobby floor and the dusty condition on which plaintiff later slipped. Elite refused plaintiff’s request that it withdraw the motion as frivolous. The motion court providently exercised its discretion in determining that Elite’s cross motion, however unpersuasive on the merits, was not frivolous, and did not warrant the imposition of sanctions ( see Hunts Point Term. Produce Coop. Assn., Inc. v New York City Economic Dev. Corp. , 54 AD3d 296 , 296 [1st Dept 2008]; Yenom Corp. v 155 Wooster St. Inc. , 33 AD3d 67 , 70 [1st Dept 2006]; 22 NYCRR 130-1.1 [c]). Concur—Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ. [Prior Case History: 2017 NY Slip Op 31044(U).].