ROTUNNO v. GRUHILL CONSTRUCTION CORP (2006)

In an action to recover damages for breach of warranty, the plaintiffs appeal from an order of the County Court, Suffolk County (Weber, J.), dated July 1, 2005, which granted the motion of the defendant Gruhill Construction Corp. purportedly pursuant to CPLR 5019(a) to amend a judgment of the same court dated December 7, 2004, to award an attorney's fee to that defendant.

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

 “CPLR 5019(a) provides a court with discretion to cure mistakes, defects and irregularities in judgments regarding ministerial matters which do not affect the substantial rights of the parties” (Haggerty v. Market Basket Enters., 8 A.D.3d 618, 619, 779 N.Y.S.2d 562;  see Kiker v. Nassau County, 85 N.Y.2d 879, 626 N.Y.S.2d 55, 649 N.E.2d 1199).   Accordingly, contrary to the County Court's conclusion, absent a reservation of jurisdiction to determine the substantive issue of an award of an attorney's fee, it lacked authority to grant the motion of the defendant Gruhill Construction Company (hereinafter Gruhill) (see Tait v. Lattingtown Harbor Dev. Co., 12 A.D.2d 966, 211 N.Y.S.2d 543;  La Vin v. La Vin, 279 App.Div. 872, 110 N.Y.S.2d 239, affd. 305 N.Y. 598, 111 N.E.2d 648;  Vailes v. Marine Basin Co., 224 N.Y.S.2d 852).

 Gruhill's reliance upon the procedures customarily employed in summary proceedings to recover real property (see RPAPL art. 7) is misplaced.   A summary proceeding “is a creature of statute” (Century Realty v. Grass, 117 Misc.2d 224, 225, 457 N.Y.S.2d 731).  RPAPL article 7, for example, “represents the Legislature's attempt to balance the rights of landlords and tenants to provide for expeditious and fair procedures for the determination of disputes involving the possession of real property” (Matter of Brusco v. Braun, 84 N.Y.2d 674, 681, 621 N.Y.S.2d 291, 645 N.E.2d 724).   Due to the expeditious nature and purpose of those special proceedings, a landlord's right to an award of an attorney's fee, when raised, is typically postponed until after a determination on the merits (see AD 1619 Co. v. VB Mgt., 259 A.D.2d 382, 687 N.Y.S.2d 127;  Monacelli v. Farrington, 240 A.D.2d 296, 658 N.Y.S.2d 623;  Dara Realty Assoc. v. Schachter, 2003 N.Y. Slip Op. 51150[U], 2003 WL 21911073;  101 Maiden Lane Realty Co. LLC v. Ho, 2002 N.Y. Slip Op. 50499 [U], 2002 WL 31914674).   In any event, Gruhill did not assert a claim to an attorney's fee until after the entry of judgment dismissing the plaintiffs' action.   Therefore, the plaintiffs properly assumed that Gruhill had waived its right to pursue that remedy (see Barclays Bank of N.Y. v. Strathmore Five Realty Co., 245 A.D.2d 406, 407, 666 N.Y.S.2d 205).