Opinion
June 24, 2008.
Order, Supreme Court, New York County (Kibbie E Payne, J.), entered May 17, 2007, which, insofar as appealed from, denied plaintiffs' motion to renew that portion of an order and judgment (one paper), same court and Justice, entered May 18, 2005, awarding attorneys' fees to defendant residential cooperative, unanimously affirmed, without costs.
Before: Tom, J.P., Andrias, Nardelli and Williams, JJ.
Plaintiff's sued defendants cooperative and managing agent under various contract and tort theories. The co-op, pursuant to paragraph 28 of the proprietary lease, asserted a counterclaim for attorneys' fees incurred in defending that action. The court, in the order and judgment that plaintiff's seek to vacate, which was affirmed by this Court ( 24 AD3d 249, lv denied 7 NY3d 704), dismissed the complaint, granted the counterclaim, and referred the matter to a Special Referee to determine the amount of reasonable attorneys' fees. Plaintiff's correctly argue that in Dupuis v 424 E. 77th Owners Corp. ( 32 AD3d 720), which was decided subsequent to the subject order and judgment, we held that paragraph 28 of the proprietary lease therein, identical to paragraph 28 herein, did not entitle the defendant co-op to recover attorneys' fees, since there was no claim that the plaintiff tenant/shareholder, who sued the co-op for breach of the warranty of habitability was in default of her lease obligations. Contrary to plaintiffs' characterization, however, Dupuis was neither new law nor a clarification of prior law, and thus cannot serve as a basis for renewal (CPLR 2221 [e] [2]). Our prior ruling in Mogulescu v 255 W. 98th St. Owners Corp. ( 135 AD2d 32, 40-41, lv dismissed in part and denied in part 73 NY2d 868), cited by Dupuis, articulated the same proposition with respect to an identical paragraph 28, as had the Second Department in St. George Tower Grill Owners Corp. v Honig ( 232 AD2d 475), also cited by Dupuis. Nor do plaintiff's offer an explanation for their failure to timely assert these precedents that might excuse such failure and warrant vacatur of the judgment in the interests of justice (CPLR 5015 [a] [1]; see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68).