Summary
noting that "it is common practice to sever a derivative claim for attorneys' fees upon granting judgment on the main claim"
Summary of this case from Levenson v. LippmanOpinion
May 19, 1998
Appeal from the Supreme Court, New York County (Elliot Wilk, J.)
There is no merit to defendants argument that plaintiff improperly split its cause of action for attorneys fees from that seeking recovery of monthly maintenance arrears, both claims having been asserted in the same action ( cf, 930 Fifth Corp. v. King, 42 N.Y.2d 886). Nor does the judgment obtained by plaintiff on its cause of action for maintenance arrears, already satisfied by defendant, have any res judicata effect on plaintiffs cause of action for attorneys fees. The two claims, although interrelated, are clearly distinct, and it is common practice to sever a derivative claim for attorneys fees upon granting judgment on the main claim ( see, e.g., Taylor v. Blaylock Partners, 240 A.D.2d 289 [Labor Law § 198 Lab.]; A M Exports v. Meridien Intl. Bank, 222 A.D.2d 378 [CPLR 6312 (b)]).
We do not agree with Supreme Courts "conclusion that the releases exchanged by the parties to this dispute "obviate recovery of attorneys fees for the related Civil Court litigation and the article 78 proceeding. Insofar as pertinent to this dispute, the stipulation entered into by the parties plainly states that "the releases shall specifically except from their terms (1) the Co-ops claim for attorneys fees against Metzger and Metzgers claim for attorneys fees against the Co-op."The releases recite that nothing contained therein shall operate to relinquish claims "for attorneys fees arising out of or alleged in [this] litigation" (emphasis added). To the extent that the quoted language in the release might be construed as ambiguous, the clear import of the stipulation dispels any doubt as to its meaning.
Defendant nevertheless contends that plaintiff cannot recover attorneys fees incurred in the Civil Court action because it was dismissed for lack of jurisdiction and, therefore, plaintiff cannot be said to have prevailed in that action. Defendants contention is without merit. This Court has often noted that Civil Court is the preferred forum in which to conduct landlord-tenant litigation ( Cox v. J.D. Realty Assocs., 217 A.D.2d 179, 182-183). In any event, it is settled that dismissal of an action for want of jurisdiction is not an adjudication on the merits ( Stevens v. Kirk, 171 A.D.2d 587, citing Maitland v. Trojan Elec. Mach. Co., 65 N.Y.2d 614). That defendant tenant may have been successful in protracting this litigation, wherever and by whatever means, does not make him a prevailing party; nor can it be gainsaid that plaintiff landlord succeeded in obtaining the central relief it sought ( cf., Nestor v. McDowell, 81 N.Y.2d 410, 415-416).
Concur — Sullivan, J.P., Ellerin, Rubin, Williams and Andrias, JJ.