Opinion
8117N Index 157070/12
04-02-2019
HOTEL CARLYLE OWNERS CORPORATION, Plaintiff–Appellant, v. Murray SCHWARTZ, Defendant–Respondent.
Rosenberg & Estis, P.C., New York (Norman Flitt of counsel), for appellant. Murray Schwartz, New York, respondent pro se.
Rosenberg & Estis, P.C., New York (Norman Flitt of counsel), for appellant.
Murray Schwartz, New York, respondent pro se.
Sweeny, J.P., Richter, Kapnick, Gesmer, Kern, JJ.
Order, Supreme Court, New York County (Ellen M. Coin, J.), entered November 28, 2017, which, to the extent appealed from as limited by the briefs, granted defendant's motion to compel the return of certain funds paid to plaintiff and directed the Clerk to enter judgment in favor of defendant and against plaintiff in the sum of $ 22,871.13, with interest thereon at the statutory rate from the date of February 28, 2017, unanimously reversed, on the law, without costs, defendant's motion denied, and plaintiff is credited with the amount of $ 10,238.46 in interest against defendant. The Clerk is directed to enter judgment in favor of plaintiff in the amount of $ 10,238.46, with interest thereon at the statutory rate from the date of February 28, 2017.
The court should have credited plaintiff cooperative corporation with statutory prejudgment interest on all the maintenance payments that defendant former unit owner failed to make. The court calculated that the total amount owed by defendant was $ 363,361.71. However, properly calculated, defendant owed plaintiff $ 396,471.90. Plaintiff only collected $ 386,233.44. Therefore, plaintiff correctly calculates, without double counting for interest accrued on a partial judgment issued earlier in the action, that it is owed $ 10,238.46.
Plaintiff never moved for a determination of its attorneys' fees. Rather, it simply introduced evidence of the fees in an accounting called for sua sponte by the court to determine the application of monies collected by plaintiff. The court correctly held that, if plaintiff wished to seek a determination of attorneys' fees, it should move for summary judgment (see Tirado v. Miller , 75 A.D.3d 153, 158, 901 N.Y.S.2d 358 [2d Dept. 2010] ).
The Decision and Order of this Court entered herein on January 15, 2019 ( 168 A.D.3d 501, 89 N.Y.S.3d 890 [1st Dept. 2019] ) is hereby recalled and vacated (see M–794 decided simultaneously herewith).