Kralik v 239 E. 79th St. Owners Corp.

Kralik v 239 E. 79th St. Owners Corp. 2012 NY Slip Op 02176 Decided on March 22, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 22, 2012
Tom, J.P., Friedman, Acosta, DeGrasse, Román, JJ.
7183N 107822/98

[*1]George Kralik, et al., Plaintiffs-Appellants,

v

239 East 79th Street Owners Corp., Defendant-Respondent.




Finder Novick Kerrigan LLP, New York (Thomas P. Kerrigan
of counsel), for appellants.
Rosenberg & Pittinsky, LLP, New York (Laurence D. Pittinsky
of counsel), for respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered December 17, 2011, which denied plaintiffs' motion for an award of attorneys' fees, unanimously affirmed, without costs.

The motion court did not abuse its discretion in denying the prevailing plaintiffs attorneys' fees pursuant to Real Property Law § 234 because the cooperative's position was justified by the state of the law when the action was commenced (see Wells v East 10th St. Assoc., 205 AD2d 431 [1994], lv denied 84 NY2d 813 [1995]). Contrary to plaintiffs' contention, courts have discretion to deny such fees based on equitable considerations and fairness (see Solow Mgt. Corp. v Lowe, 1 AD3d 135 [2003]; Jacreg Realty Corp. v Barnes, 284 AD2d 280 [2001]).

In view of the foregoing, it is unnecessary to address the other grounds urged in support of affirmance.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 22, 2012

CLERK