Berman v. Dominion Management Co.

Apr 29, 2008
Versions:50 A.D.3d 605
859 N.Y.S.2d 407

Patricia Berman et al., Appellants-Respondents, v Dominion Management Company et al., Respondents, and Board of Managers of 500 West End Avenue Condominium, Respondent-Appellant. [859 NYS2d 407]—Order, Supreme Court, New York County (Marcy Friedman, J.), entered July 10, 2007, which, to the extent appealed from as limited by the briefs, denied that portion of plaintiffs’ motion for summary judgment that sought a hearing on legal fees, and granted defendants’ cross motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In view of the mixed results of this litigation, in which plaintiffs stipulated to resolve certain remediation claims, but also stipulated to discontinue their personal injury claims, and abandoned their claims based on breach of the lease, plaintiffs cannot be considered the prevailing party in this litigation (see Real Property Law § 234; Mosesson v 288/98 W. End Tenants Corp., 294 AD2d 283 [2002]).

As to the cross appeal, since the court granted defendant board of managers’ motion to dismiss the complaint in its entirety, there is no necessity for a modification of the order.

Concur—Tom, J.P., Mazzarelli, Andrias and Williams, JJ.