Getty Properties Corp., et al., Plaintiffs-Respondents-Appellants,
Getty Petroleum Marketing Inc., Defendant, 1314 Sedgwick Ave. LLC, et al., Defendants-Appellants-Respondents, 1714 New York Ave., LLC, et al., Defendants-Respondents. One Pleasantville Road LLC, Plaintiff-Appellant,
Getty Properties Corp., Defendant-Respondent. 1224 Route 22 LLC, et al., Plaintiffs-Appellants,
Getty Properties, Corp., Defendant-Respondent. 857 RT 6 Mahopac LLC, et al., Plaintiffs-Appellants,
Getty Properties Corp., Defendant-Respondent.
Law LLC, Rehoboth, MA (Frank C. Corso of the bar of the State
of Massachusetts, admitted pro hac vice, of counsel), and
White & Wolnerman, PLLC, New York (Randolph White of
counsel), for 286 Ashburton Avenue LLC, appellant; One
Pleasantville Road LLC, 1224 Route 22 LLC, 310 Bay Shore Road
LLC, 1245 Nepperham Ave. LLC, 600 White Plains Road LLC,
49-25 Van Dam Street LLC, 857 Route 6 Mahopac LLC, 67 Quaker
Ridge Road LLC, 26-27 College Point Boulevard #2 LLC, 31-05
Queens Blvd. LLC, and 2 Montauk Highway LLC,
appellants/appellants-respondents; and 1314 Sedwick Ave. LLC,
262 Hillside Ave. LLC, 751 White Plains Road LLC, 69 BK
Street LLC, 894 Route 109, LLC, 185 East Lincoln Avenue LLC,
and Robert G. Del Gadio, appellants-respondents.
Rosenberg & Estis, P.C., New York (Howard W. Kingsley of
counsel), for Getty Properties Corp.,
respondent-appellant/respondent and Gettymart Inc.,
Guararra & Zaitz LLP, New York (Michael J. Guararra of
counsel), for 1714 New York Ave., LLC, 292 Railroad Ave.,
LLC, 286 Ashburton Ave., LLC, and Frank Mascolo, respondents.
J.P., Mazzarelli, Manzanet-Daniels, Webber, JJ.
Supreme Court, New York County (Anil C. Singh, J.), entered
July 6, 2016, in Index No. 651762/12, in favor of plaintiffs,
unanimously modified, on the law, to award plaintiffs
attorneys' fees incurred after March 31, 2015, and
otherwise affirmed, with costs against Del Gadio. Appeal from
order, same court and Justice, entered January 26, 2016,
unanimously dismissed, without costs, as subsumed in the
appeal from the judgment. Judgment, Supreme Court, New York
County (Anil C. Singh, J.), entered June 1, 2016, dismissing
the complaints in Index Nos. 401074/13, 401313/13, and
401438/13, unanimously affirmed.
challenge to the award of double use and occupancy is largely
an impermissible attempt to relitigate issues that were
resolved by this Court in two prior appeals (see Getty
Props. Corp. v Getty Petroleum Mktg. Inc., 115 A.D.3d
616, 617 [1st Dept 2014], lv dismissed 23 N.Y.3d
1006 ; Getty Props. Corp. v Getty Petroleum Mktg.
Inc., 106 A.D.3d 429');">106 A.D.3d 429 [1st Dept 2013]). They do not argue
that the referee's findings were not supported by the
record (see Atlantic Aviation Inv. LLC v Varig Logistica,
S.A., 73 A.D.3d 467, 468 [1st Dept 2010]).
Defendants-appellants' argument as to the award of
attorneys' fees is an impermissible challenge to an order
from which they failed to perfect their appeal (see Pier
59 Studios, L.P. v Chelsea Piers, L.P., 40 A.D.3d 363,
366 [1st Dept 2007]).
to plaintiffs' contention, the court correctly found the
individual defendants jointly and severally liable only for
those LLCs for which they were guarantors, not for all other
defendants (see Becker v Empire of Am. Fed. Sav.
Bank, 177 A.D.2d 958, 959 [4th Dept 1991]; compare
Ravo by Ravo v Rogatnick, 70 N.Y.2d 305');">70 N.Y.2d 305 ).
However, plaintiffs are correct that they are entitled to
recover costs and attorneys' fees incurred after March
31, 2015, such as those incurred in defending the instant
actions in Index Nos. 401074/13, 401313/13, and 401438/13 are
barred by res judicata (see O'Brien v City of
Syracuse, 54 N.Y.2d 353, 357 ). The issue of
improvements made to the demised premises arose out of the
transactions at issue in the previously decided action and
was raised in that action (see Getty Props. Corp.,
115 A.D.3d 616; Getty Props. Corp., 106 A.D.3d 429');">106 A.D.3d 429).
To the extent some plaintiffs declined to interpose
counterclaims in the action against them for ejectment, they
are barred from asserting them now, since those claims could
impair plaintiffs' rights ...