Amalgamated Dwellings, Inc. v. Blutreich

Appellate Division of the Supreme Court of New York

Amalgamated Dwellings, Inc. v. Blutreich

69 A.D.3d 486, 892 N.Y.2d 859

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 19, 2010

StatusPublished

Cited by1 cases

This text of 69 A.D.3d 486 (Amalgamated Dwellings, Inc. v. Blutreich) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Amalgamated Dwellings, Inc. v. Blutreich, 69 A.D.3d 486, 892 N.Y.2d 859 (N.Y. Ct. App. 2010).

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Opinion

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 142[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 [487]*487cooperative 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. Concur—Mazzarelli, J.E, Saxe, Acosta, DeGrasse and Manzanet-Daniels, JJ. [Prior Case History: 2008 NY Slip Op 32909(U).]

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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 142[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 [487]*487cooperative 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. Concur—Mazzarelli, J.E, Saxe, Acosta, DeGrasse and Manzanet-Daniels, JJ. [Prior Case History: 2008 NY Slip Op 32909(U).]

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Bluebook (online)

69 A.D.3d 486, 892 N.Y.2d 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amalgamated-dwellings-inc-v-blutreich-nyappdiv-2010.

Opinion

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