Tally v. 885 Real Estate Associates

• Decision Date: 07 October 2004
• Docket Number: 4230.
• Parties: JOANNE TALLY, Appellant, v. 885 REAL ESTATE ASSOCIATES et al., Respondents.
• Court: New York Supreme Court — Appellate Division

11 A.D.3d 242

782 N.Y.S.2d 431

2004 NY Slip Op 07232

JOANNE TALLY, Appellant, v. 885 REAL ESTATE ASSOCIATES et al., Respondents.

4230.

Appellate Division of the Supreme Court of the State of New York, First Department.

October 7, 2004.

Order, Supreme Court, New York County (Joan A. Madden, J.) entered October 15, 2003, which granted defendants' motion to dismiss the complaint for failure to state a cause of action and denied plaintiff's cross motion to disqualify defendants' counsel, unanimously affirmed, with costs.

Plaintiff commenced this action to enforce a determination of the Division of Housing and Community Renewal (DHCR) as well as a resulting judgment of the Civil Court which she obtained against West End Avenue Associates, a partnership, in which the present defendants were general partners. Because the partnership no longer has any assets, plaintiff seeks to enforce the DHCR order and judgment against defendant partners individually. The individual partners, however, were never named or served with process in the proceedings which resulted in the judgment, and, accordingly, enforcement of the underlying order and judgment may not be had against them personally (see Vets N., Inc. v Libutti, 278 AD2d 406 [2000]; Matter of Corry Assoc. v Division of Hous. & Community Renewal, 254 AD2d 286 [1998]; CPLR 1502).

In light of the grant of defendants' motion, plaintiff's cross motion to disqualify defendants' counsel based upon the advocate-witness rule was properly denied.

Concur — Nardelli, J.P., Mazzarelli, Sullivan, Williams and Catterson, JJ.