Zion New York Limited Partnership, Appellant, v. Silverberg Stonehill & Goldsmith, P. C., et al., Respondents

Zion New York Limited Partnership, Appellant, v Silverberg Stonehill & Goldsmith, P. C., et al., Respondents. [721 NYS2d 504] [MAJORITY] —Order, Supreme Court, New York County (Paula Omansky, J.), entered August 17, 1999, which, as modified by an order, same court and Justice, entered January 19, 2000, granted defendants’ motion to dismiss the complaint and directed plaintiff’s counsel to pay attorneys’ fees to defendants in the amount of $1,000, unanimously affirmed, with costs. Defendants’ motion to dismiss was properly granted since plaintiff’s claims should have been asserted in the earlier proceeding. To allow such claims to be raised in the present proceeding would impair the rights established by the earlier proceeding and so render the final judgment obtained in that earlier proceeding of no force or effect. New York’s permissive counterclaim rule “does not * * * permit a party to remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action” (see, Modell & Co. v Minister of Refm. Prot. Dutch Church, 68 NY2d 456, 462, n 2). In addition, it was entirely proper for the court to award $1,000 to defendants in attorneys’ fees pursuant to 22 NYCRR 130-1.1 to reimburse defendants for expenses attributable to the undue delay and frivolous conduct of plaintiffs counsel. Concur — Mazzarelli, J. P., Ellerin, Wallach, Rubin and Saxe, JJ.