Plaintiff moves to dismiss defendants' counterclaim for failure to state a cause of action. Defendants oppose.

Plaintiff began working for defendants in August 2003 and resigned after 10 weeks allegedly because of sexual harassment by Alex Smith owner and operator of the 2 businesses.

On February 20, 2004, plaintiff filed a complaint claiming sexual harassment and failure to pay her October 2003 wages of $1,160. Defendants timely served an answer with affirmative defenses and a counterclaim for sanctions for bringing a frivolous action and fabricating allegations.

Defendants' counterclaim is based on an accusation that plaintiff brought a frivolous law suit. This is not a recognized cause of action. Couch v. Schmidt, 204 AD2d 951 (2d Dep't 1994) ("while CPLR 8303-a provides for assessment of sanctions in the nature of costs and counsel fees in a proper case, it does not create an independent cause of action").

Attorney's fees and sanctions are permitted by 22 NYCRR 130-1.1 (d) and CPLR 8303-a to penalize specific frivolous conduct. The court in its discretion may award attorney's fees and sanctions. A party is not entitled to such relief as a matter of right, and it may not be pleaded as a distinct cause of action. A party may apply for such relief by motion upon the happening of specific conduct. An assertion that plaintiff's entire pleading is frivolous may be tested upon a summary judgment motion to dismiss the complaint. A counterclaim for attorney's fees and sanctions based upon the assertion that the action is frivolous is improper.

A Preliminary Conference on this action shall be held in Room 304, 71 Thomas Street on Tuesday, October 19, 2004 at 3:00 PM.

This is the Decision and Order of the Court.

DATE:July 29, 2004

E N T E R :

__________________________

HAROLD B. BEELER, J.S.C.