Ordered that the order is modified, as a matter of discretion, by deleting the provision thereof awarding sanctions pursuant to 22 NYCRR 130-1.1 (b), and substituting therefor a provision denying the branch of the cross motion which was for sanctions in its entirety; as so modified, the order is affirmed, without costs or disbursements.
CPLR 3211 (a) (4) vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties based on the same cause of action (see, Whitney v Whitney, 57 N.Y.2d 731, 732). Under the circumstances, dismissal was a proper exercise of discretion. However, the sanction awarded pursuant to 22 N.Y.CRR part 130 was improper, since the appellant's motion was not frivolous (see, 22 NYCRR 130-1.2; see also, Nowak v Walden, 187 A.D.2d 418).
We have considered the appellant's remaining contention and find it to be without merit. Mangano, P.J., Rosenblatt, Ritter and Santucci, JJ., concur.