The IAS Court erred in awarding sanctions against plaintiff's counsel pursuant to CPLR 8303-a for commencing "frivolous" litigation, since, prior to trial, the court had denied Nielsen's summary judgment motion on grounds that there were genuine issues of material fact as to this defendant's negligence requiring resolution at trial (see, Rittenhouse v St. Regis Hotel Joint Venture, 180 A.D.2d 523; see also, Hinckley v Resciniti, 159 A.D.2d 276).
Concur — Sullivan, J.P., Rosenberger, Wallach, Asch and Williams, JJ.