Amalgamated Dwellings, Inc. v. Blutreich

The cooperative waived any right it might have had to recover the attorneys’ fees it seeks herein when it settled its prior CPLR 5206 proceeding without any reference to the language contained in the order to show cause that initiated that proceeding requesting, inter alia, that the two judgments it had obtained against defendants, “and the costs, disbursements and attorneys’ fees of this proceeding,” be adjudged and enforced as liens on the shares allocated to defendants’ apartment (see J.D. Realty Assoc. v Shanley, 288 AD2d 27 [2001]; 512 E. 11th St. HDFC v Als, 10 Misc 3d 142[A], 2006 NY Slip Op 50079[U] [2006]). In short, the cooperative asserted a claim for the attorneys’ fees it seeks herein, and settled it. It does not avail the cooperative to assert, for the first time in its reply brief on the appeal, that inclusion of this claim for attorneys’ fees was included in the order to show cause “inadvertently.” We have considered the cooperative’s claim based on the no-waiver clause in the lease and find it to be without merit. Concur—Mazzarelli, J.E, Saxe, Acosta, DeGrasse and Manzanet-Daniels, JJ. [Prior Case History: 2008 NY Slip Op 32909(U).]