South Tower Residential Board of Managers of Time Warner Center Condominium v. Ann Holdings, LLC

2016 NY Slip Op 8594, 145 A.D.3d 584, 42 N.Y.S.3d 795

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2016
• Docket: 2523 156148/12
• Status: Published

Opinion

Order, Supreme Court, New York County (Anil C. Singh, J.), entered on or about October 30, 2015, which denied defendant’s motion for summary judgment dismissing plaintiff’s request for attorneys’ fees, unanimously affirmed, with costs.

Defendant’s argument that plaintiff is not entitled to attorneys’ fees should have been raised in its prior appeal, which resulted in this Court’s affirmance of a judgment in favor of plaintiff (127 AD3d 485 [1st Dept 2015], lv dismissed 25 NY3d 1196 [2015]). Thus, the issue will not be considered on this appeal (see Katz v City of New York, 231 AD2d 448 [1st Dept 1996]; Harbas v Gilmore, 214 AD2d 440 [1st Dept 1995], lv dismissed 87 NY2d 861 [1995]). The error in allowing plaintiff to obtain attorneys’ fees is not so fundamental as to impel us to address this issue in the interest of justice (cf. Abren v Manhattan Plaza Assoc., 214 AD2d 526, 527 [2d Dept 1995], lv denied 86 NY2d 707 [1995]).

Concur—Friedman, J.R, Moskowitz, Web-ber, Kahn and Gesmer, JJ.