Powers v. Velasco

Appellate Division of the Supreme Court of New York

Powers v. Velasco

232 A.D.2d 197, 648 N.Y.S.2d 14, 1996 N.Y. App. Div. LEXIS 9809

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

DecidedOctober 3, 1996

StatusPublished

This text of 232 A.D.2d 197 (Powers v. Velasco) 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

Powers v. Velasco, 232 A.D.2d 197, 648 N.Y.S.2d 14, 1996 N.Y. App. Div. LEXIS 9809 (N.Y. Ct. App. 1996).

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Opinion

—Judgment, Supreme Court, New York County (Herman Cahn, J.), entered March 29, 1996, awarding defendant the principal sum of $86,000 and bringing up for review an order, same court and Justice, entered January 22, 1996, which granted defendant’s motion for summary judgment on his counterclaim for conversion, unanimously affirmed, with costs. Appeal from the order unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

The motion court properly declined to allow plaintiff to circumvent the final preclusion order and the resulting award [198]*198of summary judgment dismissing her complaint seeking attorney’s fees by disallowing the assertion of the fee claim as a setoff to defendant’s counterclaim (see, Barrett v Kasco Constr. Co., 56 NY2d 830). The "sui generis” determination under the "peculiar circumstances” in Headley v Noto (22 NY2d 1, 5), upon which plaintiff relies, does not warrant a different result (see, Holley v Mandate Realty Corp., 121 AD2d 202, 204, affd 69 NY2d 721 [distinguishing summary judgment dismissal based upon preclusion from dismissal for neglect to prosecute]). Concur—Milonas, J. P., Rosenberger, Kupferman and Tom, JJ.

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—Judgment, Supreme Court, New York County (Herman Cahn, J.), entered March 29, 1996, awarding defendant the principal sum of $86,000 and bringing up for review an order, same court and Justice, entered January 22, 1996, which granted defendant’s motion for summary judgment on his counterclaim for conversion, unanimously affirmed, with costs. Appeal from the order unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

The motion court properly declined to allow plaintiff to circumvent the final preclusion order and the resulting award [198]*198of summary judgment dismissing her complaint seeking attorney’s fees by disallowing the assertion of the fee claim as a setoff to defendant’s counterclaim (see, Barrett v Kasco Constr. Co., 56 NY2d 830). The "sui generis” determination under the "peculiar circumstances” in Headley v Noto (22 NY2d 1, 5), upon which plaintiff relies, does not warrant a different result (see, Holley v Mandate Realty Corp., 121 AD2d 202, 204, affd 69 NY2d 721 [distinguishing summary judgment dismissal based upon preclusion from dismissal for neglect to prosecute]). Concur—Milonas, J. P., Rosenberger, Kupferman and Tom, JJ.

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Bluebook (online)

232 A.D.2d 197, 648 N.Y.S.2d 14, 1996 N.Y. App. Div. LEXIS 9809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powers-v-velasco-nyappdiv-1996.

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