Majority
p. 505Jay H. Marcus et al., Appellants, v Jewish National Fund (Keren Kayemeth Leisrael), Inc., Respondent.
— Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered July 1, 1991, which denied plaintiffs’ motion to hold
p. 506
defendant in contempt and awarded defendant costs for frivolous conduct in the form of $2,000 attorneys’ fees, unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of vacating the award of costs, and otherwise affirmed, without costs.
Order of same court, entered June 26, 1991, which, insofar as appealed from, denied plaintiffs’ motion for class action certification, partial summary judgment as to liability only on their third cause of action, and dismissal of the fourth, eighth and ninth affirmative defenses, unanimously affirmed, without costs.
We modify only to the extent of striking the court’s sua sponte imposition of sanctions. Concur — Sullivan, J. P., Ellerin, Kupferman and Asch, JJ.