Casey, J. (dissenting). The complaints in these two actions, which arise out of a boundary line dispute, are identical except that the plaintiff in action No. 2 is the record title holder of the property and, therefore, the proper party to maintain the action. Although action No. 1 was not formally discontinued, it is undisputed that action No. 2 was intended to replace action No. 1. Accordingly, plaintiffs’ counsel took no further steps to prosecute action No. 1 and focused instead on action No. 2. In these circumstances it cannot be said that the failure to seek dismissal of action No. 1 constituted frivolous conduct as a matter of law within the meaning of CPLR 8303-a.
Although plaintiffs’ counsel was mistaken in his belief that no formal motion to discontinue action No. 1 was required, there is no evidence that the action was continued in bad faith. Nor should we infer bad faith from counsel’s technical error. In the exercise of its authority and responsibility to supervise these actions, Supreme Court found that sanctions were not appropriate, and there is nothing in the record to justify this court’s interference with Supreme Court’s finding. The order should, therefore, be affirmed.
Ordered that the order is modified, on the law, with costs to defendants, by reversing so much thereof as denied defendants’ request in action No. 1 for sanctions; said motion granted and matter remitted to the Supreme Court for further proceedings not inconsistent with this court’s decision; and, as so modified, affirmed.