222 Bloomingdale Road Associates v. NYNEX Properties Co.

246 A.D.2d 532, 666 N.Y.S.2d 943, 1998 N.Y. App. Div. LEXIS 120

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered December 12, 1995, as denied its motion to dismiss the plaintiff’s complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendant’s contention, the Supreme Court properly denied its motion to dismiss the plaintiff’s complaint since there was no determination in a prior action between the parties concerning the merits of the plaintiff’s claim for attorneys’ fees under the alleged indemnity agreement now at issue (see, Union Carbide Corp. v Ogden Allied E. States Maintenance Corp., 186 AD2d 386).

We make no determination as to the appellant’s claim that the plaintiff impermissibly split its cause of action for attorneys’ fees by not seeking this relief in the prior action (see, 222 Bloomingdale Rd. Assocs. v NYNEX Props. Co., 250 AD2d 668). This claim is raised for the first time on appeal and is not properly before us (see, Green Point Sav. Bank v Oppenheim, 217 AD2d 571). O’Brien, J. P., Thompson, Joy and Florio, JJ., concur.