Getty Props. Corp. v Getty Petroleum Mktg. Inc.

Getty Props. Corp. v Getty Petroleum Mktg. Inc. 2017 NY Slip Op 04048 Decided on May 18, 2017 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 May 18, 2017
Tom, J.P., Mazzarelli, Manzanet-Daniels, Webber, JJ.
651762/12 -401074/13 4054 401313/13 401438/13 4053A 4053

[*1]Getty Properties Corp., et al., Plaintiffs-Respondents-Appellants,

v

Getty Petroleum Marketing Inc., Defendant, 1314 Sedgwick Ave. LLC, et al., Defendants-Appellants-Respondents, 1714 New York Ave., LLC, et al., Defendants-Respondents.



One Pleasantville Road LLC, Plaintiff-Appellant,

v

Getty Properties Corp., Defendant-Respondent.



1224 Route 22 LLC, et al., Plaintiffs-Appellants,

v

Getty Properties, Corp., Defendant-Respondent.



857 RT 6 Mahopac LLC, et al., Plaintiffs-Appellants,

v

Getty Properties Corp., Defendant-Respondent.

Corso Law LLC, Rehoboth, MA (Frank C. Corso of the bar of the State of Massachusetts, admitted pro hac vice, of counsel), and White & Wolnerman, PLLC, New York (Randolph White of counsel), for 286 Ashburton Avenue LLC, appellant; One Pleasantville Road LLC, 1224 Route 22 LLC, 310 Bay Shore Road LLC, 1245 Nepperham Ave. LLC, 600 White Plains Road LLC, 49-25 Van Dam Street LLC, 857 Route 6 Mahopac LLC, 67 Quaker Ridge Road LLC, 26-27 College Point Boulevard #2 LLC, 31-05 Queens Blvd. LLC, and 2 Montauk Highway LLC, appellants/appellants-respondents; and 1314 Sedwick Ave. LLC, 262 Hillside Ave. LLC, 751 White Plains Road LLC, 69 BK Street LLC, 894 Route 109, LLC, 185 East Lincoln Avenue LLC, and Robert G. Del Gadio, appellants-respondents.

Rosenberg & Estis, P.C., New York (Howard W. Kingsley of counsel), for Getty Properties [*2]Corp., respondent-appellant/respondent and Gettymart Inc., respondent/appellant.

Guararra & Zaitz LLP, New York (Michael J. Guararra of counsel), for 1714 New York Ave., LLC, 292 Railroad Ave., LLC, 286 Ashburton Ave., LLC, and Frank Mascolo, respondents.

Judgment, Supreme Court, New York County (Anil C. Singh, J.), entered July 6, 2016, in Index No. 651762/12, in favor of plaintiffs, unanimously modified, on the law, to award plaintiffs attorneys' fees incurred after March 31, 2015, and otherwise affirmed, with costs against Del Gadio. Appeal from order, same court and Justice, entered January 26, 2016, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Judgment, Supreme Court, New York County (Anil C. Singh, J.), entered June 1, 2016, dismissing the complaints in Index Nos. 401074/13, 401313/13, and 401438/13, unanimously affirmed.

Defendants-appellants' challenge to the award of double use and occupancy is largely an impermissible attempt to relitigate issues that were resolved by this Court in two prior appeals

(see Getty Props. Corp. v Getty Petroleum Mktg. Inc., 115 AD3d 616, 617 [1st Dept 2014], lv dismissed 23 NY3d 1006 [2014]; Getty Props. Corp. v Getty Petroleum Mktg. Inc., 106 AD3d 429 [1st Dept 2013]). They do not argue that the referee's findings were not supported by the record (see Atlantic Aviation Inv. LLC v Varig Logistica, S.A., 73 AD3d 467, 468 [1st Dept 2010]). Defendants-appellants' argument as to the award of attorneys' fees is an impermissible challenge to an order from which they failed to perfect their appeal (see Pier 59 Studios, L.P. v Chelsea Piers, L.P., 40 AD3d 363, 366 [1st Dept 2007]).

Contrary to plaintiffs' contention, the court correctly found the individual defendants jointly and severally liable only for those LLCs for which they were guarantors, not for all other defendants (see Becker v Empire of Am. Fed. Sav. Bank, 177 AD2d 958, 959 [4th Dept 1991]; compare Ravo by Ravo v Rogatnick, 70 NY2d 305 [1987]). However, plaintiffs are correct that they are entitled to recover costs and attorneys' fees incurred after March 31, 2015, such as those incurred in defending the instant appeal.

The actions in Index Nos. 401074/13, 401313/13, and 401438/13 are barred by res judicata (see O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). The issue of improvements made to the demised premises arose out of the transactions at issue in the previously decided action and was raised in that action (see Getty Props. Corp., 115 AD3d 616; Getty Props. Corp., 106 AD3d 429). To the extent some plaintiffs declined to interpose counterclaims in the action against them for ejectment, they are barred from asserting them now, since those claims could impair plaintiffs' rights established in the ejectment action (see Henry Modell & Co. v Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of N.Y., 68 NY2d 456, 461 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 18, 2017

CLERK