South Tower Residential Bd. of Mgrs. of Time Warner Ctr. Condominium v Ann Holdings, LLC

South Tower Residential Bd. of Mgrs. of Time Warner Ctr. Condominium v Ann Holdings, LLC 2016 NY Slip Op 08594 Decided on December 22, 2016 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 December 22, 2016
Friedman, J.P., Moskowitz, Webber, Kahn, Gesmer, JJ.
2523 156148/12

[*1]The South Tower Residential Board of Managers of Time Warner Center Condominium, Plaintiff-Respondent,

v

The Ann Holdings, LLC, formerly known as The Ann LLC, Defendant-Appellant.

Dewey Pegno & Kramarsky LLP, New York (Thomas E.L. Dewey of counsel), for appellant.

Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz of counsel), for respondent.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered on or about October 30, 2015, which denied defendant's motion for summary judgment dismissing plaintiff's request for attorneys' fees, unanimously affirmed, with costs.

Defendant's argument that plaintiff is not entitled to attorneys' fees should have been raised in its prior appeal, which resulted in this Court's affirmance of a judgment in favor of plaintiff (127 AD3d 485 [1st Dept 2015], lv dismissed 25 NY3d 1196 [2015]). Thus, the issue will not be considered on this appeal (see Katz v City of New York, 231 AD2d 448 [1st Dept 1996]; Harbas v Gilmore, 214 AD2d 440 [1st Dept 1995], lv dismissed 87 NY2d 861 [1995]). The error in allowing plaintiff to obtain attorneys' fees is not so fundamental as to impel us to address this issue in the interest of justice (cf. Abreu v Manhattan Plaza Assoc., 214 AD2d 526, 527 [2d Dept 1995], lv denied 86 NY2d 707 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 22, 2016

DEPUTY CLERK