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Fontilus v. Pereira

82 A.D.3d 1040 Court N.Y. App. Div. Decision date 2011-03-22 English

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p. 1040
Jasmine Fontilus, an Infant, by Her Mother and Natural Guardian, Majolie Augustin, Formerly Known as Majolie Fontilus, Appellant, v Herb Pereira et al., Respondents.
[918 NYS2d 884]

The Supreme Court properly denied those branches of the plaintiffs motion and cross motion which were for an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1 (a). Contrary to the plaintiffs contention, an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1 (a) was not warranted, inasmuch as the conduct of the defendant Dinkes & Schwitzer in the underly

p. 1041
ing personal injury action was not frivolous within the meaning of 22 NYCRR 130-1.1 (c) (see 22 NYCRR 130-1.1 [c]; Carrasquilla v City of New York, 78 AD3d 635 , 639 [2010]; Joan 2000, Ltd. v Deco Constr. Corp., 66 AD3d 841 , 842 [2009]). Nor was there any other basis on which to award an attorney’s fee under the circumstances of this case.

The Supreme Court improvidently exercised its discretion in denying those branches of the plaintiffs motion which were to amend the caption (see Kiaer v Gilligan, 63 AD3d 1009 , 1010 [2009]; Holster v Ross, 45 AD3d 640 [2007]; Kingalarm Distribs. v Video Insights Corp., 274 AD2d 416 , 417 [2000]), and for leave to serve a supplemental summons and an amended complaint adding William Schwitzer as an additional defendant (see Kiaer v Gilligan, 63 AD3d at 1011 ).

The plaintiffs remaining contentions either are without merit or need not be reached in light of our determination. Rivera, J.E, Balkin, Leventhal and Hall, JJ., concur.

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