Opinion
14693 Index No. 653272/18 Case No. 2020–03726
11-23-2021
19 STANTON STREET LLC, Plaintiff–Appellant, v. 19 STANTON REALTY LLC, Defendant–Respondent.
Woods Oviatt Gilman LLP, Rochester (John Nutter of counsel), for appellant. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.
Woods Oviatt Gilman LLP, Rochester (John Nutter of counsel), for appellant.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.
Kern, J.P., Gesmer, Gonza´lez, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered on or about June 4, 2020, which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
The motion court correctly determined that under the merger doctrine, section 30.3 of the parties’ agreement, which provided for attorneys’ fees, did not survive the real estate closing, because, unlike other clauses of the agreement, section 30.3 did not state that it would survive the closing and transfer of the deed (see TIAA Global Invs., LLC v. One Astoria Sq. LLC, 127 A.D.3d 75, 85, 7 N.Y.S.3d 1 [1st Dept. 2015] ). The court also properly determined that the attorneys’ fees provision was not collateral to the real estate transaction, as any attorneys’ fees awarded in the action would have arisen during disputes related to the agreement, and attorneys’ fees expended in enforcing a contract do not reflect an independent obligation (see e.g. Novelty Crystal Corp. v. PSA Institutional Partners, L.P., 49 A.D.3d 113, 118, 850 N.Y.S.2d 497 [2d Dept. 2008] ). Furthermore, as defendant asserts, these are sophisticated parties represented by counsel, and plaintiff's failure to raise its entitlement to attorneys’ fees in the context of the prior action, in the specific circumstances at bar, violates the prohibition against the splitting of causes of action (see O'Connell v. 1205–15 First Ave. Assoc., LLC, 28 A.D.3d 233, 234, 813 N.Y.S.2d 378 [1st Dept. 2006] ).
We have considered plaintiff's remaining contentions and find them unavailing.