Grinnell Housing Development Fund Corp. v. Jones

214 A.D.2d 340, 625 N.Y.S.2d 25, 1995 N.Y. App. Div. LEXIS 3711

Opinion

Order and judgment (one paper), Supreme Court, New York County (Karla Moskowitz, J.), entered August 17, 1994, which, in an action by plaintiff government-sponsored cooperative housing corporation for, inter alia, a declaration that defendants shareholders/proprietary lessees can be required to sell their shares because they are not occupying their apartments as their primary residences, declared in favor of defendants and, insofar as appealed from, awarded defendants-respondents attorneys’ fees in amounts to be determined after a hearing before a Special Referee, unanimously affirmed, without costs.

Plaintiff’s action was based in part on the argument that it is a requirement of the lease that tenants occupy their apartments as their primary residences, and given this allegation of lease violation, attorneys’ fees were properly awarded (compare, Cier Indus. Co. v Hessen, 136 AD2d 145, 149, and Troy v Oberlander, 146 AD2d 460, with Peck v Wolf, 157 AD2d 535, 536, lv denied 75 NY2d 709). Plaintiff’s claim that it is not liable for attorneys’ fees because it acted in good faith is a fact-based argument improperly made for the first time on appeal (see, City of New York v Stack, 178 AD2d 355, lv denied 80 NY2d 753), and we decline to reach it. Concur—Sullivan, J. P., Wallach, Rubin and Williams, JJ.