WAVERTREE CORP v. 136 WAVERLY ASSOCIATES

Reset A A Font size: Print

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

WAVERTREE CORP., Plaintiff-Respondent, v. 136 WAVERLY ASSOCIATES, Defendant-Appellant.

Decided: February 23, 1999

RUBIN, J.P., MAZZARELLI, ANDRIAS and SAXE, JJ. Mitchel H. Ochs, for Plaintiff-Respondent. Steven L. Schultz, for Defendant-Appellant.

Order, Supreme Court, New York County (Elliott Wilk, J.), entered September 2, 1998, which granted plaintiff's motion for a declaration to the effect that plaintiff had a right to collect future tax payments from defendant pursuant to the parties' lease agreement, and granted plaintiff's request for costs and attorneys' fees, unanimously modified, on the law, to the extent of striking plaintiff's claim for attorneys' fees to the extent that it is based on plaintiff's prosecution of two prior actions for recovery of defendant's share of real estate taxes, and otherwise affirmed, without costs.

 In light of defendant's history of refusing to remit to plaintiff real estate taxes due under the parties' lease agreement, the motion court's declaration requiring defendant's payment of the disputed obligation in the future was appropriate (see, Sherry v. New York State Education Dept., 479 F.Supp. 1328, 1335).   We modify only to the extent of limiting plaintiff's recovery of attorneys' fees to those incurred in its prosecution of this action.   Although the subject lease agreement specifically grants plaintiff the right to seek attorneys' fees incurred in the event of any default by defendant, enforcement of the prohibition against the splitting of causes of action requires that such fees be sought within the action in which they are incurred, and not in a subsequent action (see, 930 Fifth Corp. v. King, 54 A.D.2d 636, 387 N.Y.S.2d 621, affd. 42 N.Y.2d 886, 397 N.Y.S.2d 788, 366 N.E.2d 875).

MEMORANDUM DECISION.