On January 2, 2025, Justice Bannon of the New York County Commercial Division issued a decision in Khedouri v. Gabriel, 2025 NY Slip Op. 30034(U), holding that a motion is not frivolous simply because it was unlikely to succeed, explaining:
22 NYCRR § 130-1.1(a) provides, in relevant part, that the court, in its discretion, may award to any party or attorney in any civil action costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct. Frivolous conduct includes conduct that is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law, is undertaken primarily to harass or maliciously injure another, or asserts material factual statements that are false. The plaintiff has not made this showing.
. . .
Similarly unavailing is the plaintiff’s further contention that the defendants should be sanctioned because their summary judgment motion is thin on evidentiary support and relies heavily on affidavits asserting facts that are arguably inconsistent with other evidence in the record. A motion is not rendered frivolous simply because it is unlikely to succeed and/or is ultimately denied. The fact that the court took a difference view of the evidence is not grounds for sanctions. Moreover, given the grant of the defendants’ motion to the extent it seeks the dismissal of the plaintiff’s cause of action for quantum meruit, the motion is clearly not completely without merit in law and there is no basis to find that it was undertaken primarily to harass or maliciously injure the plaintiff.
(Internal quotations and citations omitted).