Rosenbaum v. Boulder Ridge Homeowners Ass'n

—In an action, inter alia, to recover damages for fraud, the plaintiff appeals from so much of a judgment of the Supreme Court, Westchester County (Scarpino, J.), entered December 7, 1999, as dismissed the complaint insofar as asserted against Reiffman & Blum and awarded it costs, including an attorney’s fee, pursuant to 22 NYCRR 130-1.1 (b) in the total amount of $11,000.

Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the respondent costs, including an attorney’s fee; as so modified, the judgment is affirmed insofar as appealed from, with costs to the respondent.

The Supreme Court properly granted summary judgment to the respondent. After the respondent made out a prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether it knowingly made false representations to him concerning the premises, an essential element to his claim sounding in fraud (see, Rosenbaum v Boulder Ridge Homeowners Assn., 276 AD2d 615 ; C.P. J. Inc. v 234 High Seas Rest. Corp., 260 AD2d 524 , 525). However, the award of costs, including an attorney’s fee, was improper, as the plaintiff’s conduct was not frivolous (see, 22 NYCRR 130-1.1 [c]; Matter of Barrera v Barrera, 190 AD2d 667 ). Friedmann, J. P., Goldstein, Feuerstein and Crane, JJ., concur.