Defendant appeals from a judgment of the Civil Court, New York County, entered September 9, 2004 (Cynthia S. Kern, J.) upon an order of the same court and Judge dated August 24, 2004, which granted plaintiff's motion for summary judgment in the principal sum of $11,000.

PER CURIAM:

Judgment entered September 9, 2004 (Cynthia S. Kern, J.) affirmed, with $25 costs. Appeal from order
dated August 24, 2004 dismissed, without costs, as superseded by the appeal from the ensuing judgment.

Civil Court properly granted summary judgment in favor of plaintiff in this action between executive recruitment firms for a placement fee. Defendant conceded the agreement for the payment to plaintiff of one-half of the $22,000 fee it received. Defendant's counterclaim for damages based upon a completely separate transaction was properly severed and did not preclude summary judgment to plaintiff on the main claim (see European American Bank v Surgical Consultants, P.C., 308 AD2d 419 [2003]).

Plaintiff requests sanctions and costs against defendant for prosecuting this appeal. Despite our conclusion that defendant's appellate contentions lack merit, we do not find [*2]that defendant has engaged in frivolous conduct (see 22 NYCRR 130-1.1 [c]; Mitchell v
LaBarge, 257 AD2d 834, 835 [1999]) and the request is therefore denied.

This constitutes the decision and order of the court.
I concur. I concur. I concur.
Decision Date: April 25, 2005