May 2007. The Appellate Division, Second Department, affirmed a lower court order denying defendant's motion for sanctions against a plaintiff based on frivolous conduct. In Cain v. Segall, the plaintiff, a legal secretary, commenced action against her boss, claiming that he committed battery during an argument. The defendant denied the claim, and the matter was tried before the Honorable Arthur Schack of the Supreme Court of the State of New York, County of Kings. Justice Schack dismissed the case at trial on the grounds that the plaintiff failed to make out a prima facie case. Segall subsequently moved for sanctions against both Cain and her attorney, claiming they acted frivolously by making a claim they knew to be false. Simultaneously, Segall commenced action in the Supreme Court, County of Nassau, claiming malicious prosecution.

Lewis Johs represented Cain in the Nassau County action. Additionally, because the result of the sanctions applications could have res judicata effect on the Nasau County action, Lewis Johs represented Cain in the sanctions hearing in Kings County.  Justice Schack denied the sanctions application.

With Michael T. Colavecchio on the brief and Milton Thurm on the argument, Lewis Johs opposed the appeal.  In addition, Mr. Colavecchio moved for summary judgment on res judicata grounds in the malicious prosecution action.

By order dated May 8, 2007, the Appellate Division upheld the denial of sanctions.  The following day, the Supreme Court, Nassau County, granted summary judgment, dismissing Segall's claims against Cain.