CALCE v. FUTTERMAN

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Supreme Court, Appellate Division, First Department, New York.

Alfonso CALCE, et al., Plaintiffs-Appellants, v. Stella FUTTERMAN, et al., Defendants-Respondents.

Decided: January 28, 1997

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER, NARDELLI and MAZZARELLI, JJ. Frank J. Salvi, for plaintiffs-appellants. Perry Y. Young, for defendants-respondents.

Order and judgment, Supreme Court, Bronx County (Howard Silver, J.), entered October 19 and November 30, 1995, respectively, which, inter alia, granted defendants' motion to confirm the referee's report and granted defendants legal fees in the sum of $5,000, unanimously reversed, on the law, without costs, and the defendants' motions are dismissed, without prejudice to commencement of a plenary action.

The facts of this litigation to foreclose on a mortgage are set forth in this court's prior decision in (Futterman v. Calce, 226 A.D.2d 306, 642 N.Y.S.2d 220).   On this appeal, we are faced with the issue of whether an award of attorneys' fees was properly granted as a result of a post judgment motion for such relief, and we conclude that it was not.  CPLR 5011 defines a judgment as “the determination of the rights of the parties in an action ․”, and it has been construed to represent the final resolution of all matters submitted to the court in an action or proceeding (Towley v. King Arthur Rings, Inc., 40 N.Y.2d 129, 386 N.Y.S.2d 80, 351 N.E.2d 728).   Although related to the earlier litigation, the attorneys' fees sought on this appeal were incurred after the final judgment was entered.   Accordingly, the defendants' motions are dismissed, without prejudice to commencement of a plenary action for the same relief.

MEMORANDUM DECISION.