Firemen's Ass'n of State v. 99 Wash. Llc

• Decision Date: 13 May 2010
• Citation: 2010 N.Y. Slip Op. 04098,901 N.Y.S.2d 739,73 A.D.3d 1320
• Parties: FIREMEN'S ASSOCIATION OF the STATE OF NEW YORK, Appellant,v.99 WASHINGTON, LLC, et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 1320

901 N.Y.S.2d 739

2010 N.Y. Slip Op. 04098

FIREMEN'S ASSOCIATION OF the STATE OF NEW YORK, Appellant,

v.99 WASHINGTON, LLC, et al., Respondents, et al., Defendant.

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

May 13, 2010.

Roemer, Wallens & Mineaux, L.L.P., Albany (Matthew J. Kelly of counsel), for appellant.Couch White, L.L.P., Albany (Melanie J. LaFond of counsel), for respondents.Before: CARDONA, P.J., SPAIN, MALONE JR. and McCARTHY, JJ.SPAIN, J.

Appeal from an order of the Supreme Court (O'Connor, J.), entered March 5, 2009 in Albany County, which, among other things, granted certain defendants' motion to strike the nonjury note of issue.

Plaintiff and defendant 99 Washington, LLC are the owners of adjoining properties on Washington Avenue in the City of Albany. In April 2006, plaintiff and defendants entered into a license agreement granting defendants exclusive use and occupancy of plaintiff's parking area and the air space above and generally contiguous to the western wall of the building owned by 99 Washington for the purpose of replacing and repairing the exterior facade of the west side of that structure. Pursuant to that agreement, facade work was to be completed by November 1, 2006 and the parking area was to be vacated no later than April 10, 2007, subject to an additional 30–day extension. The agreement also provided for the payment of reasonable counsel fees to plaintiff in the event that defendants failed to comply with the time requirements and plaintiff instituted legal action as a result. Thereafter, due to construction delays, the air space deadline was extended to December 15, 2006; the parking area date remained unchanged.

When defendants failed to meet the December 2006 project deadline, plaintiff promptly commenced this action for ejectment and moved by order to show cause for a permanent order of ejectment. By order entered May 11, 2007, Supreme Court denied plaintiff's application. At that point, defendants apparently had completed the air space work and, at some point thereafter, they vacated the parking lot within the time contemplated by the license agreement. Plaintiff then moved for a temporary restraining order, a preliminary injunction, counsel fees and, again, a permanent order of ejectment. By order entered August 26, 2008, Supreme Court denied the requested relief in its entirety.

Plaintiff thereafter filed a nonjury note of issue seeking to litigate its entitlement to counsel fees under the license agreement. All but one of the named defendants ¹ moved to vacate the note of issue on the basis that the August 2008 order resolved all issues between the parties. Plaintiff opposed that application and indicated that it wished to litigate its entitlement to a permanent order of ejectment, as well as counsel fees. Supreme Court granted the motion and struck the note of issue. On plaintiff's appeal, we now affirm.

First, plaintiff asserts that its request for a permanent order of ejectment is not moot, despite the fact that the facade renovation work has long been completed and the parking area vacated, because defendants have asserted their intention of utilizing plaintiff's air space in the future when necessary for routine maintenance or repairs to the building. We find that defendants' statements to that effect merely express their intent to seek permissive use or, alternatively, their statutory and common-law right to seek a license for reasonable access if it is refused ( see RPAPL 881; Chase Manhattan Bank [Natl. Assn.] v. Broadway, Whitney Co., 57 Misc.2d 1091, 1096, 294 N.Y.S.2d 416 [1968], affd. 24 N.Y.2d 927, 301 N.Y.S.2d 989, 249 N.E.2d 767 [1969] ). To the extent that plaintiff contends that defendants plan to utilize plaintiff's property without permission or authorization and, thus, prospectively seek to bar defendants from such actions, the application is not ripe for review as no such conduct has occurred.

Turning to the issue of counsel fees, we find no error in Supreme Court's holding that its August 2008 order denying counsel fees became the law of the case and, thus, precluded plaintiff from relitigating that issue before that court ( see People v. Evans, 94 N.Y.2d 499, 502–504, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000] ). However, contrary to defendants' contention, that doctrine does not preclude us from considering the issue on appeal ( see id. at 504 n. 3, 706 N.Y.S.2d 678, 727 N.E.2d 1232). Indeed, plaintiff's...