Opinion
7703 Index 651762/12
11-27-2018
GETTY PROPERTIES CORP., et al., Plaintiffs–Appellants, v. GETTY PETROLEUM MARKETING, INC., et al., Defendants–Respondents.
Rosenberg & Estis, P.C., New York (Howard W. Kingsley of counsel), for appellants. Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondents.
Rosenberg & Estis, P.C., New York (Howard W. Kingsley of counsel), for appellants.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondents.
Friedman, J.P., Mazzarelli, Kern, Oing, JJ.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered December 13, 2017, which, to the extent appealed from as limited by the briefs, denied that part of plaintiffs' motion for prejudgment interest on the award of attorneys' fees, unanimously reversed, on the law, with costs, and the motion granted.
Plaintiffs are correct that our affirmance of the prior judgment awarding prejudgment interest on attorneys' fees, Getty Props. Corp. v. Getty Petroleum Mktg. Inc., 150 A.D.3d 541, 55 N.Y.S.3d 186 [1st Dept. 2017], lv dismissed 30 N.Y.3d 1083, 69 N.Y.S.3d 850, 92 N.E.3d 1240 [2018], lv dismissed sub nom. One Pleasantville Rd. LLC v. Getty Props. Corp., 30 N.Y.3d 1084, 69 N.Y.S.3d 851, 92 N.E.3d 1241 [2018] constitutes the law of the case. As such, the IAS court should not have deviated from it (see Massey v. Byrne, 164 A.D.3d 416, 81 N.Y.S.3d 49 [1st Dept. 2018] ). Plaintiffs are also correct that the prior order of this Court forecloses any additional challenge on the issue by defendants (see Brodsky v. New York City Campaign Fin. Bd., 107 A.D.3d 544, 545–546, 971 N.Y.S.2d 265 [1st Dept. 2013] ).
Were we to reach the merits, we would affirm. As the IAS court previously found (in an order previously affirmed), one basis for awarding attorneys' fees was that the subleases at issue incorporated and were subject to the master lease. The master lease contained an attorneys' fee provision for fees arising from breaches of the various leases and related leases. This clause is within the ambit of CPLR 5001.