Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
Under the circumstances of this case, the conduct of the defendant and his counsel in serving a subpoena duces tecum on Steven Oteri and taking his testimony at trial did not constitute frivolous conduct sufficient to warrant the imposition of sanctions ( see 601 Realty Corp. v Conway, Farrell, Curtin Kelly, P.C., 74 AD3d 1179; Dank v Sears Holding Mgt. Corp., 69 AD3d 557, 558; Matter of Wecker v D'Ambrosio, 6 AD3d 452, 453). Accordingly, the Supreme Court providently exercised its discretion in denying those branches of the plaintiffs motion which were to impose sanctions against the defendant and his counsel and for an attorney's fee.
The plaintiffs remaining contentions are without merit.