| Bluestone v Capogrosso |
| 2006 NY Slip Op 51165(U) [12 Misc 3d 132(A)] |
| Decided on June 26, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiff appeals from an order of the Civil Court, New York County (Barbara Jaffe, J.), entered December 30, 2005, which denied his motion for entry of a default judgment against defendant and dismissed the complaint.
PER CURIAM
Order (Barbara Jaffe, J.), entered December 30, 2005, affirmed, without costs, for the reasons stated by Barbara Jaffe, J. at the Civil Court.
Plaintiff, as counterclaimant in the underlying small claims action between these parties, voluntarily pursued a claim for legal fees and ultimately prevailed on that claim to the extent allowed by the court's monetary jurisdictional limit. In this posture, plaintiff must be deemed to have waived the balance of any legal fee alleged to be due (see Siegel, NY Prac § 582, at 1010-1011, § 585, at 1016 [4th ed]).
This constitutes the decision and order of the court.
I concur I concur I concur
Decision Date: June 26, 2006