Zion New York Ltd. Partnership v. Silverberg Stonehill & Goldsmith, P. C.

Appellate Division of the Supreme Court of New York

Zion New York Ltd. Partnership v. Silverberg Stonehill & Goldsmith, P. C.

280 A.D.2d 432, 721 N.Y.S.2d 504, 2001 N.Y. App. Div. LEXIS 1921

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

DecidedFebruary 27, 2001

StatusPublished

Cited by1 cases

This text of 280 A.D.2d 432 (Zion New York Ltd. Partnership v. Silverberg Stonehill & Goldsmith, P. C.) 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.

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Zion New York Ltd. Partnership v. Silverberg Stonehill & Goldsmith, P. C., 280 A.D.2d 432, 721 N.Y.S.2d 504, 2001 N.Y. App. Div. LEXIS 1921 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, New York County (Paula Omansky, J.), entered August 17, 1999, which, as modified by an order, same court and Justice, entered January 19, 2000, granted defendants’ motion to dismiss the complaint and directed plaintiff’s counsel to pay attorneys’ fees to defendants in the amount of $1,000, unanimously affirmed, with costs.

Defendants’ motion to dismiss was properly granted since plaintiff’s claims should have been asserted in the earlier proceeding. To allow such claims to be raised in the present proceeding would impair the rights established by the earlier proceeding and so render the final judgment obtained in that earlier proceeding of no force or effect. New York’s permissive counterclaim rule “does not * * * permit a party to remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action” (see, Modell & Co. v Minister of Refm. Prot. Dutch Church, 68 NY2d 456, 462, n 2).

[433]*433In addition, it was entirely proper for the court to award $1,000 to defendants in attorneys’ fees pursuant to 22 NYCRR 130-1.1 to reimburse defendants for expenses attributable to the undue delay and frivolous conduct of plaintiffs counsel. Concur — Mazzarelli, J. P., Ellerin, Wallach, Rubin and Saxe, JJ.

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—Order, Supreme Court, New York County (Paula Omansky, J.), entered August 17, 1999, which, as modified by an order, same court and Justice, entered January 19, 2000, granted defendants’ motion to dismiss the complaint and directed plaintiff’s counsel to pay attorneys’ fees to defendants in the amount of $1,000, unanimously affirmed, with costs.

Defendants’ motion to dismiss was properly granted since plaintiff’s claims should have been asserted in the earlier proceeding. To allow such claims to be raised in the present proceeding would impair the rights established by the earlier proceeding and so render the final judgment obtained in that earlier proceeding of no force or effect. New York’s permissive counterclaim rule “does not * * * permit a party to remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action” (see, Modell & Co. v Minister of Refm. Prot. Dutch Church, 68 NY2d 456, 462, n 2).

[433]*433In addition, it was entirely proper for the court to award $1,000 to defendants in attorneys’ fees pursuant to 22 NYCRR 130-1.1 to reimburse defendants for expenses attributable to the undue delay and frivolous conduct of plaintiffs counsel. Concur — Mazzarelli, J. P., Ellerin, Wallach, Rubin and Saxe, JJ.

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280 A.D.2d 432, 721 N.Y.S.2d 504, 2001 N.Y. App. Div. LEXIS 1921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zion-new-york-ltd-partnership-v-silverberg-stonehill-goldsmith-p-c-nyappdiv-2001.

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