Rosenberg v. McCormack

Appellate Division of the Supreme Court of New York

Rosenberg v. McCormack

266 A.D.2d 396, 698 N.Y.S.2d 170, 1999 N.Y. App. Div. LEXIS 11557

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

DecidedNovember 15, 1999

StatusPublished

Cited by2 cases

This text of 266 A.D.2d 396 (Rosenberg v. McCormack) 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

Rosenberg v. McCormack, 266 A.D.2d 396, 698 N.Y.S.2d 170, 1999 N.Y. App. Div. LEXIS 11557 (N.Y. Ct. App. 1999).

Pincite

Opinion

—In a proceeding pursuant to Judiciary Law § 475 to fix attorney’s fees, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated January 28, 1999, as denied that branch of its motion which sought prejudgment interest pursuant to CPLR 5001 and the costs and disbursements of the proceeding.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The petitioner’s failure to seek prejudgment interest pursuant to CPLR 5001 in connection with the order of the Supreme Court, Kings County, which originally fixed the amount of the legal fees due it, or in connection with its prior appeal (see, Matter of Gary E. Rosenberg, P. C. v McCormack, 250 AD2d 679), acted as a waiver of any claim for prejudgment interest (see, Dilorio v Gibson & Cushman, 167 AD2d 267, cert denied 502 US 868).

In addition, we reject the petitioner’s contention that it was entitled to the costs and disbursements of this proceeding. Under all the circumstances, such an award would not be equitable (see, CPLR 8101, 8301). O’Brien, J. P., Sullivan, Gold-stein and Feuerstein, JJ., concur.

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—In a proceeding pursuant to Judiciary Law § 475 to fix attorney’s fees, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated January 28, 1999, as denied that branch of its motion which sought prejudgment interest pursuant to CPLR 5001 and the costs and disbursements of the proceeding.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The petitioner’s failure to seek prejudgment interest pursuant to CPLR 5001 in connection with the order of the Supreme Court, Kings County, which originally fixed the amount of the legal fees due it, or in connection with its prior appeal (see, Matter of Gary E. Rosenberg, P. C. v McCormack, 250 AD2d 679), acted as a waiver of any claim for prejudgment interest (see, Dilorio v Gibson & Cushman, 167 AD2d 267, cert denied 502 US 868).

In addition, we reject the petitioner’s contention that it was entitled to the costs and disbursements of this proceeding. Under all the circumstances, such an award would not be equitable (see, CPLR 8101, 8301). O’Brien, J. P., Sullivan, Gold-stein and Feuerstein, JJ., concur.

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Bluebook (online)

266 A.D.2d 396, 698 N.Y.S.2d 170, 1999 N.Y. App. Div. LEXIS 11557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenberg-v-mccormack-nyappdiv-1999.

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