Diane Conniff, Plaintiff–Appellant–Respondent, v. 32 (2012)

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Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 23, 2010, which amended an order, same court and Justice, entered on or about October 25, 2010, granting defendants' motion to dismiss the amended complaint, to grant the dismissal with prejudice, and denied a request by defendant 32 Gramercy Park Owners Corp. (Gramercy) for attorneys' fees, unanimously modified, on the law, to dismiss the complaint without prejudice, and otherwise affirmed, without costs.

The dismissal should have been without prejudice because the court dismissed the complaint upon plaintiff's default in failing to oppose the motion to dismiss (see Hernandez v. St. Barnabas Hosp., _ AD3d _, 2011 N.Y. Slip Op 7722 [2011];  Aguilar v. Jacoby, 34 AD3d 706, 708 [2006] ).   The Court did not address the merits of the motion.

The court properly denied Gramercy's request for attorneys' fees.   Even assuming that Gramercy presented competent evidence to show that the lease provision on which it relies was included in the proprietary lease signed by plaintiff, that provision is inapplicable here because plaintiff was not alleged to be in default of the lease (see Dupuis v. 424 E. 77th Owners Corp., 32 AD3d 720, 722 [2006] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK