IN THE MATTER OF KAUFMAN

Inasmuch as the record discloses that the board of the subject condominium had discretion to, and did in fact, waive enforcement of the "no-pet" provision in its Rules and Regulations as against the unit owner in question, the petition seeking mandamus to compel enforcement of the "no-pet" provision against that unit owner was properly denied. Mandamus does not lie to compel a discretionary act ( see Matter of Garrison Protective Servs. v. Office of the Comptroller, 92 N.Y.2d 732, 736) and respondent managing agent was, in any event, bound by its principal's actions; it was not free to countermand the waiver granted by the condominium ( see William Stevens, Ltd. v. Kings Vill. Corp., 234 A.D.2d 287).

Petitioner's motion to disqualify respondent's counsel was properly denied. Contrary to petitioner's contention, the circumstance that respondent's counsel had also represented respondent's principal, the condominium, did not give rise to any conflict of interest, the interests of the principal and agent not having been adverse ( see Solow v. W.R. Grace Co., 83 N.Y.2d 303, 306).

In view of the patently frivolous nature of this litigation ( see 22 NYCRR § 130-1.1[c][1]), attorneys' fees of $1,100 were properly assessed against petitioner.

We have considered and rejected petitioner's remaining arguments.

Motion seeking enlargement of time granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.