Round Dune, Inc. v. Filkowski

197 A.D.3d 748

153 N.Y.S.3d 166

ROUND DUNE, INC., respondent-appellant,

v.Edward FILKOWSKI, etc., defendant,James S. Knee, etc., et al., appellants-respondents.

2018–01069

Index No. 34490/12

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 19, 2021

August 25, 2021

Schlam Stone & Dolan LLP, New York, N.Y. (Thomas A. Kissane, Elizabeth Wolstein, and Seth D. Allen of counsel), for appellants-respondents.

Cohen, Warren, Meyer & Gitter, P.C., Smithtown, N.Y. (Evan Gitter and Lisa Albert of counsel), for respondent-appellant.

HECTOR D. LASALLE, P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, for a judgment directing the defendants to comply with the requirements of a proprietary lease, the defendants James S. Knee and Irina Mernik–Kraus appeal, and the plaintiff cross-appeals, from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), entered November 21, 2017. The order, insofar as appealed from, denied that branch of the cross motion of the defendants James S. Knee and Irina Mernik–Kraus which was for an award of attorney's fees pursuant to Real Property Law § 234. The order, insofar as cross-appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the cause of action for an award of attorney's fees pursuant to the proprietary lease.

ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the cross motion of the defendants James S. Knee and Irina Mernik–Kraus which was for an award of attorney's fees pursuant to Real Property Law § 234 is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the amount of attorney's fees to which the defendants James S. Knee and Irina Mernik–Kraus are entitled; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants James S. Knee and Irina Mernik–Kraus.

The plaintiff, a cooperative apartment corporation, commenced this action against, among others, the defendants James S. Knee and Irina Mernik–Kraus (hereinafter together the defendants), in their capacity as trustees of a trust, asserting that they were required to seek the approval of the plaintiff's board of directors for the transfer of the shares and proprietary leases of two of the cooperative apartments to Mernik–Kraus. The complaint also asserted a cause of action seeking an award of attorney's fees pursuant to a provision of the proprietary lease. In defense of the action, the defendants contended that the approval of the plaintiff's board of directors was not required for the transfer of the shares and proprietary leases. The plaintiff moved, inter alia, for summary judgment on the complaint, and the defendants cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them. Although the defendants had not asserted a counterclaim for an award of attorney's fees from the plaintiff, they argued in their cross motion that they were entitled to an award of such fees pursuant to Real Property Law § 234. In opposition to the cross motion, the plaintiff contested the defendants' entitlement to attorney's fees. The Supreme Court denied the plaintiff's motion for summary judgment, and granted, in part, the defendant's cross motion for summary judgment. The court expressly rejected the plaintiff's contention that approval of its board of directors was necessary to effectuate the transfer of the...