SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT : PESCE, P.J., WESTON PATTERSON and BELEN, JJ.

NO. 2005-42 Q C
IAN M. HERZBERG,

Respondent,

-against-

LOUIS MONTESANO,

Appellant.

DECISION

Motion by plaintiff-respondent to dismiss appeal denied (see CPLR 5513 [a]).

Inasmuch as plaintiff-respondent's request for sanctions was not included in his notice of motion, we decline to entertain it. In any event, we note that defendant-appellant's taking of the appeal was not frivolous.