BOARD OF MANAGERS OF AMHERST CONDOMINIUM v. The City of New York, et al., Defendants.

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

The BOARD OF MANAGERS OF the AMHERST CONDOMINIUM, Plaintiff-Respondent, v. CC MING (USA) LTD. PARTNERSHIP, etc., Defendant-Appellant, The City of New York, et al., Defendants.

Decided: September 18, 2003

ANDRIAS, J.P., SAXE, SULLIVAN, ROSENBERGER and MARLOW, JJ. Evan Schieber, for Plaintiff-Respondent. David DeMaggio, for Defendant-Appellant.

Order, Supreme Court, New York County (Shirley Kornreich, J.), entered March 12, 2002, which, inter alia, denied the motion of defendant CC Ming (USA) Ltd. for partial summary judgment dismissing that part of plaintiff condominium's action seeking to foreclose upon the condominium unit lien dated March 13, 2000 for CC Ming's failure to pay condominium common charges representing litigation and professional fees incurred by plaintiff in prior actions and proceedings between plaintiff and CC Ming, unanimously affirmed, with costs.

 While it is generally impermissible to seek litigation fees related to the prosecution of an action in a separate action without an order severing the claim (see e.g. 930 Fifth Corp. v. King, 42 N.Y.2d 886, 887, 397 N.Y.S.2d 788, 366 N.E.2d 875;  815 Park Ave. Owners, Inc. v. Metzger, 250 A.D.2d 471, 672 N.Y.S.2d 860), here the doctrine against “splitting” a cause of action is not properly invoked to prevent plaintiff condominium from asserting its claim for legal fees incurred in prior litigation with defendant CC Ming since plaintiff's recovery of such legal fees by means of subsequently imposed common charges is expressly authorized by the Condominium By-Laws.   CC Ming, as a unit owner, agreed to the separate assertion of plaintiff condominium's recoupment claim by voluntarily agreeing to be governed by the Condominium By-Laws (see Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 554 N.Y.S.2d 807, 553 N.E.2d 1317).   Contrary to CC Ming's contention, the subject By Laws do not condition the right of the condominium to recoup litigation-related expenses as common charges upon a judicial determination that a unit owner breached or violated a By-Law provision.