Opinion
2014-06-17
1050 TENANTS CORP., Plaintiff–Appellant, v. Steven R. LAPIDUS, et al., Defendants–Respondents. Arthur M. Handler, Plaintiff, v. Steven R. Lapidus, et al., Defendants–Respondents, 1050 Tenants Corp., Defendant–Appellant.
Gallet Dreyer & Berkey, LLP, New York (David L. Berkey of counsel), for appellant. Law Office of Theodore P. Kaplan, New York (Theodore P. Kaplan of counsel), for respondents.
Gallet Dreyer & Berkey, LLP, New York (David L. Berkey of counsel), for appellant. Law Office of Theodore P. Kaplan, New York (Theodore P. Kaplan of counsel), for respondents.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered May 23, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiff cooperative's motion to restore the action and for additional attorneys' fees incurred after entry of the judgment, unanimously affirmed, with costs. Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered January 25, 2013, which, to the extent appealed from as limited by the briefs, denied defendant cooperative's motion to restore the action and for additionalattorneys' fees incurred after entry of the judgment, unanimously affirmed, with costs.
The cooperative's applications for additional attorneys' fees are not precluded by res judicata, collateral estoppel or law of the case because such later-incurred fees were not and could not have been sought in the orders and judgments awarding attorneys' fees, and the cooperative's right to such fees had not been necessarily decided ( see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005];Jumax Assoc. v. 350 Cabrini Owners Corp., 110 A.D.3d 622, 973 N.Y.S.2d 631 [1st Dept.2013];Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 [1979];Syncora Guar. Inc. v. J.P. Morgan Sec. LLC, 110 A.D.3d 87, 92–93, 970 N.Y.S.2d 526 [1st Dept.2013];Ferolito v. Vultaggio, 115 A.D.3d 541, 982 N.Y.S.2d 449 [1st Dept.2014] ). Contrary to defendants Steven R. Lapidus and Iris R. Lapidus's contention, the language in the order granting attorneys' fees until the date of eviction was not a limitation. Similarly, the additional attorneys' fees are not precluded by the prohibition against splitting causes of action, because the claims for supplemental fees did not exist when the attorneys' fees were awarded in the judgments, were distinct claims, and were being sought in a single action ( see Sannon–Stamm Assoc., Inc. v. Keefe, Bruyette & Woods, Inc., 68 A.D.3d 678, 890 N.Y.S.2d 828 [1st Dept.2009];Murray, Hollander, Sullivan & Bass v. HEM Research, 111 A.D.2d 63, 66, 489 N.Y.S.2d 187 [1st Dept.1985];Landmark Props. v. Olivo, 62 A.D.3d 959, 961, 881 N.Y.S.2d 110 [2nd Dept.2009] ).
However, the motion courts correctly perceived that pending legal issues in Supreme Court, Suffolk County, regarding the cooperative's claimed entitlement to supplemental attorneys' fees and its claimed right to deduct them from the proceeds of the sale of the Lapiduses' unit warranted the determination of related issues in that forum.
We have considered the cooperative's other contentions and find them unavailing. SWEENY, J.P., RENWICK, ANDRIAS, RICHTER, KAPNICK, JJ., concur.