JACKSON v. WESTMINSTER HOUSE OWNERS INC

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

Richard JACKSON, et al., Plaintiffs-Appellants, v. WESTMINSTER HOUSE OWNERS INC., et al., Defendants-Respondents.

Decided: June 24, 2008

TOM, J.P., ANDRIAS, NARDELLI, WILLIAMS, JJ. Gallet Dreyer & Berkey, LLP, New York (Morrell I. Berkowitz of counsel), for appellants. Irwin, Lewin, Cohn & Lewin, P.C., New York (Edward Cohn of counsel), for respondents.

Order, Supreme Court, New York County (Kibbie F. Payne, J.), entered May 17, 2007, which, insofar as appealed from, denied plaintiffs' motion to renew that portion of an order and judgment (one paper), same court and Justice, entered May 18, 2005, awarding attorneys' fees to defendant residential cooperative, unanimously affirmed, without costs.

Plaintiffs sued defendants cooperative and managing agent under various contract and tort theories.   The coop, pursuant to paragraph 28 of the proprietary lease, asserted a counterclaim for attorneys' fees incurred in defending that action.   The court, in the order and judgment that plaintiffs seek to vacate, which was affirmed by this Court (24 A.D.3d 249, 806 N.Y.S.2d 495 [2005], lv. denied 7 N.Y.3d 704, 819 N.Y.S.2d 871, 853 N.E.2d 242 [2006] ), dismissed the complaint, granted the counterclaim, and referred the matter to a Special Referee to determine the amount of reasonable attorneys' fees.   Plaintiffs correctly argue that in Dupuis v. 424 E. 77th Owners Corp., 32 A.D.3d 720, 821 N.Y.S.2d 173 [2006], which was decided subsequent to the subject order and judgment, we held that paragraph 28 of the proprietary lease therein, identical to paragraph 28 herein, did not entitle the defendant coop to recover attorneys' fees, since there was no claim that the plaintiff tenant/shareholder, who sued the coop for breach of the warranty of habitability, was in default of her lease obligations.   Contrary to plaintiffs' characterization, however, Dupuis was neither new law nor a clarification of prior law, and thus cannot serve as a basis for renewal (CPLR 2221[e][2] ).   Our prior ruling in Mogulescu v. 255 W. 98th St. Owners Corp., 135 A.D.2d 32, 40-41, 523 N.Y.S.2d 801 [1988], lv. dismissed in part and denied in part 73 N.Y.2d 868, 537 N.Y.S.2d 487, 534 N.E.2d 325 [1989], cited by Dupuis, articulated the same proposition with respect to an identical paragraph 28, as had the Second Department in St. George Tower & Grill Owners Corp. v. Honig, 232 A.D.2d 475, 648 N.Y.S.2d 172 [1996], also cited by Dupuis.   Nor do plaintiffs offer an explanation for their failure to timely assert these precedents that might excuse such failure and warrant vacatur of the judgment in the interests of justice (CPLR 5015[a][1];  see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ).