B-Sharp Musical Productions, Inc., contracted with James Haber to provide a 16-piece band atHabers sons bar mitzvah. Their contract contained a liquidated damages clause for payment of theentire contract price if Haber canceled the deal within ninety days of the date of performance. Haberdid cancel the deal with less than ninety days to the bar mitzvah, but he refused to pay the price. B-Sharp filed a suit in a New York state court against Haber. The court issued a judgment in B-Sharpsfavor. Haber appealed.A state intermediate appellate court affirmed. The subject provision of the contract is anenforceable liquidated damages clause, not an unenforceable penalty. The clause, which in effectuses an estimate of [plaintiffs] chances of rebooking the [band] as the measure of probable loss inthe event of a cancellation, reflects an understanding that although the expense and possibility ofrebooking a canceled [performance] could not be ascertained with certainty, as a practical matter theexpense would become greater, and the possibility would become less, the closer to the[performance] the cancellation was made, until a point was reached, [90] days before [theperformance], that any effort to rebook could not be reasonably expected.

An appeal is frivolous if it is groundless, devoid of merit, or demonstrates bad faith,. Under this definition, was Habers appeal frivolous An appeal is frivolous if it is groundless, devoid of merit, or demonstrates bad faith. Under this definition, was Habers appeal frivolous?