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Amalgamated Dwellings, Inc. v. Blutreich

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 19, 2010

AMALGAMATED DWELLINGS, INC., PLAINTIFF-APPELLANT,
v.
IRA BLUTREICH, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered October 24, 2008, which, in an action by a cooperative corporation against two of its shareholders to recover attorneys' fees incurred by the cooperative in a special proceeding pursuant to CPLR 5206 it had brought to enforce two prior judgments against defendants for unpaid maintenance and electric charges and for attorneys' fees incurred in prosecuting the claims for unpaid maintenance and electric charges, denied the cooperative's motion for partial summary judgment on the issue of liability and, sua sponte, dismissed the complaint, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Saxe, Acosta, DeGrasse, Manzanet-Daniels, JJ.

117239/07

The cooperative waived any right it might have had to recover the attorneys' fees it seeks herein when it settled its prior CPLR 5206 proceeding without any reference to the language contained in the order to show cause that initiated that proceeding requesting, inter alia, that the two judgments it had obtained against defendants, "and the costs, disbursements and attorneys' fees of this proceeding," be adjudged and enforced as liens on the shares allocated to defendants' apartment (see J.D. Realty Assoc. v Shanley, 288 AD2d 27 [2001]; 512 E. 11th St. HDFC v Als, 10 Misc 3d 412[A], 2006 NY Slip Op 50079[U] [2006]). In short, the cooperative asserted a claim for the attorneys' fees it seeks herein, and settled it. It does not avail the cooperative to assert, for the first time in its reply brief on the appeal, that inclusion of this claim for attorneys' fees was included in the order to show cause "inadvertently." We have considered the cooperative's claim based on the no-waiver clause in the lease and find it to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100119

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