Tally v. 885 Real Estates Associates

Appellate Division of the Supreme Court of New York

Tally v. 885 Real Estates Associates

11 A.D.3d 242, 782 N.Y.S.2d 431, 2004 N.Y. App. Div. LEXIS 11686

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

DecidedOctober 7, 2004

StatusPublished

This text of 11 A.D.3d 242 (Tally v. 885 Real Estates Associates) 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

Tally v. 885 Real Estates Associates, 11 A.D.3d 242, 782 N.Y.S.2d 431, 2004 N.Y. App. Div. LEXIS 11686 (N.Y. Ct. App. 2004).

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Opinion

Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 15, 2003, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action and denied plaintiff’s cross motion to disqualify defendants’ counsel, unanimously affirmed, with costs.

Plaintiff commenced this action to enforce a determination of the Division of Housing and Community Renewal (DHCR) as well as a resulting judgment of the Civil Court which she obtained against West End Avenue Associates, a partnership, in which the present defendants were general partners. Because the partnership no longer has any assets, plaintiff seeks to enforce the DHCR order and judgment against defendant partners individually. The individual partners, however, were never named or served with process in the proceedings which resulted in the judgment, and, accordingly, enforcement of the underlying order and judgment may not be had against them personally (see Vets N., Inc. v Libutti, 278 AD2d 406 [2000]; Matter of Corry Assoc. v Division of Hous. & Community Renewal, 254 AD2d 286 [1998]; CPLR 1502).

In light of the grant of defendants’ motion, plaintiffs cross motion to disqualify defendants’ counsel based upon the advocate-witness rule was properly denied. Concur—Nardelli, J.P., Mazzarelli, Sullivan, Williams and Catterson, JJ.

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Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 15, 2003, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action and denied plaintiff’s cross motion to disqualify defendants’ counsel, unanimously affirmed, with costs.

Plaintiff commenced this action to enforce a determination of the Division of Housing and Community Renewal (DHCR) as well as a resulting judgment of the Civil Court which she obtained against West End Avenue Associates, a partnership, in which the present defendants were general partners. Because the partnership no longer has any assets, plaintiff seeks to enforce the DHCR order and judgment against defendant partners individually. The individual partners, however, were never named or served with process in the proceedings which resulted in the judgment, and, accordingly, enforcement of the underlying order and judgment may not be had against them personally (see Vets N., Inc. v Libutti, 278 AD2d 406 [2000]; Matter of Corry Assoc. v Division of Hous. & Community Renewal, 254 AD2d 286 [1998]; CPLR 1502).

In light of the grant of defendants’ motion, plaintiffs cross motion to disqualify defendants’ counsel based upon the advocate-witness rule was properly denied. Concur—Nardelli, J.P., Mazzarelli, Sullivan, Williams and Catterson, JJ.

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Bluebook (online)

11 A.D.3d 242, 782 N.Y.S.2d 431, 2004 N.Y. App. Div. LEXIS 11686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tally-v-885-real-estates-associates-nyappdiv-2004.

Opinion

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