Jackson v. Westminster House Owners

Full title: RICHARD JACKSON and SANDHA JACKSON, Plaintiffs, v. WESTMINSTER HOUSE…

Court: Supreme Court of the State of New York, New York County

Date published: May 8, 2007

2007 N.Y. Slip Op. 31246 (N.Y. Sup. Ct. 2007)

Opinion

0115879/2001.

Dated: May 8, 2007.

Decision Order

KIBBIE F. PAYNE, J.

Plaintiffs move pursuant to CPLR 2221 to renew "consideration of a portion of the Decision/Judgment" of this court, entered May 18, 2005, which granted defendant Westminster House Owners, Inc. (Westminster) attorneys' fees and referred the issue of such fees to a Special Referee and, upon renewal, to vacate said portion of the order and the related orders of the special referee. Plaintiffs contend that Dupuis v East 77^th Owners Corp. ( 32 AD3d 720, 721 [1^stDept . 2006]) represents a change in law, requiring a reversal of the court's determination regarding attorneys' fees. Plaintiffs further move pursuant to CPLR 5015 to vacate the May 18, 2 0 05 judgment, and the related determinations of the special referee. Westminster opposes this motion and cross-moves for sanctions and attorneys' fees.

CPLR 2221 permits parties to apply for leave "to renew . . . a prior motion, for leave to appeal from, or to stay, vacate or modify, an order. . . ." "Renewal is not a proper vehicle for obtaining relief from a judgment" (see Matter of Curry v Vertex Restoration Corp., 252 AD2d 360 [1^st Dept . 1998];see also Neville v Mane Therese Martin, 38 AD3d 386 [1^st Dept. 2007]). In any event, plaintiffs' reliance on Dupuis ( 32 AD3d 720) for renewal is misplaced. Dupuis does not present a change in law (see CPLR 2221 [e]). That case interprets a reimbursement provision in a lease agreement using general principles and considering the arguments set forth by the parties. The decision does not purport to establish new principles of interpretation or otherwise. Indeed, in support of its analysis, the Dupius court cites decisions pre-dating this action by five and 13 years (see Dupuis, 32 AD2d at 721, citing St. George Tower Grill Owners Corp. v Honig, 232 AD2d 475 [2^nd Dept. 1996] and Mongulescu v 255 W. 98 ^th Str. Owners Corp., 135 AD2d 32, 40-41 [1^st Dept. 1988]).

Despite the existence of this case law, plaintiffs failed to oppose Westminster's counterclaim for legal fees on the specific ground that the circumstances presented did not meet the lease criteria for such reimbursement. This court granted Westminster's counterclaim without such opposition, and the First Department affirmed this court's judgment (see Jackson v Westminster House, Owners, Inc., 24 AD3d 249 [1^st Dept. 2005], lv denied 7 NY3d 704) .

Plaintiffs' motion to vacate pursuant to CPLR 5015 is similarly unavailing. Plaintiffs fail to establish any ground for such relief. The court, however, will not grant Westminster's cross-motion to sanction plaintiffs and award it attorneys' fees. Plaintiffs arguments here were not so utterly lacking in merit to qualify as frivolous conduct (see Rules of the Chief Administrator [22 NYCRRJ § 130-1.1 [c]). The court reviewed the parties' remaining contentions and find them without merit. Accordingly, it is

ORDERED that the motion and cross-motion are denied.

The foregoing constitutes the decision and order of the court.