Bd., Mgrs., 55 Walker St. v. Walker St.

Full title: BOARD OF MANAGERS OF 55 WALKER STREET CONDOMINIUM, Plaintiff-Respondent…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 20, 2004

6 A.D.3d 279 (N.Y. App. Div. 2004)

774 N.Y.S.2d 701

Opinion

3408N.

Decided April 20, 2004.

Appeal from order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about December 3, 2002, deemed to be an appeal from a subsequent judgment, same court and Justice, entered April 30, 2003, which, to the extent appealed from as limited by the briefs, awarded plaintiff attorneys' fees, and so considered, the judgment is unanimously affirmed, with costs.

Mordechai Lipkis, New York, for appellants.

Rosen Livingston, New York (Bruce A. Cholst of counsel), for respondent.

Before: Tom, J.P., Saxe, Williams, Friedman, Marlow, JJ.

The condominium bylaws provided for recovery of attorneys' fees for litigation in connection with a unit owner's default in payments. The court initially found such a default and granted summary judgment to plaintiff, deferring the issue of attorneys' fees. After review of extensive billing submissions, and defendant having declined a hearing, the court made appropriate reductions and granted plaintiff's application. Defendants now protest the entitlement to fees because plaintiff did not prevail in the underlying litigation.

In order to justify an award of contractual attorneys' fees, the court need not adopt each claim raised in a lawsuit ( Senfeld v. I.S.T.A. Holding Co., 235 A.D.2d 345, lv denied 92 N.Y.2d 818). Rather, the claimant must simply be the prevailing party on the central claims advanced, and receive substantial relief in consequence thereof ( 501 E. 87th St. Realty Co. v. Ole Pa Enters., 304 A.D.2d 310, 311). The court validated the theory of recovery in several categories herein, and granted a substantial part of the relief requested, so there was no error with regard to the award of fees. Denial of the application to appoint a receiver did not vitiate plaintiff's status as prevailing party; the court was willing to appoint a receiver, but declined only on condition that the condominium owner pay arrears by a date certain.

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