Energycresent, Inc. v. Creative Modules Enterprises, Inc.

— In an action, inter alia, for [805] specific performance of an option to purchase real property, the plaintiff appeals from an order of the Supreme Court, Queens County (Lane, J.), dated July 13, 1990, which denied its motion for summary judgment. Ordered that the order is modified, on the law, by granting the motion to the extent of (1) awarding summary judgment in favor of the plaintiff on its claim for specific performance, and (2) awarding partial summary judgment in favor of the plaintiff on the issue of liability only on its claim for damages; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith. The plaintiff commenced the instant action for specific performance of an option to purchase real property and to recover damages and counsel fees incurred as a result of the defendant’s refusal to convey the subject premises pursuant to the option agreement. The plaintiff thereafter moved for summary judgment on these claims, and the defendant opposed the motion on the ground that the claims were barred by res judicata The Supreme Court denied the motion based on its finding that a triable issue existed regarding whether res judicata was applicable to the case. We now modify the order of the Supreme Court. We note that the issue of the applicability of res judicata to this case presents a question of law, not of fact. Contrary to the defendant’s contention, res judicata does not bar the plaintiff’s claims. The record demonstrates that the prior litigation between the parties consisted of an unsuccessful attempt by the defendant to invalidate the option agreement, or the lease in which it is set forth, on various grounds. The gravamen of the plaintiff’s instant claims is not the same wrong which was at issue in the prior litigation (see, Matter of Reilly v Reid, 45 NY2d 24; Lukowsky v Shalit, 110 AD2d 563). Moreover, the prior litigation was commenced long before the option could be exercised, and an attempt by the plaintiff to assert its claim for specific performance as a counterclaim in that action would have been inappropriate. In any event, it is well settled that "[w]here a [party] may interpose a claim as a counterclaim but fails to do so, the doctrine of res judicata in the sense of claim preclusion does not apply to prevent him from subsequently maintaining an action on that claim” (Pace v Perk, 81 AD2d 444, 460; see, Abdella v Ne Jame, 120 AD2d 793; Lukowsky v Shalit, supra). Accordingly, the plaintiff is entitled to an award of summary judgment on its claim for specific performance of the option agreement. Additionally, [806] the plaintiff is entitled to partial summary judgment on the issue of liability only with respect to its claim for damages caused by the defendant’s refusal to comply with the terms of the option agreement. The matter must be remitted to the Supreme Court for an inquest to determine the amount of damages, if any, which the plaintiff has incurred. However, we find that summary judgment was properly denied with respect to the plaintiff’s claim for counsel fees, inasmuch as the plaintiff has not shown any contractual or statutory provision authorizing such an award (see, Sakowitz v Ketsoglou, 120 AD2d 512). Finally, the defendant’s contention that the plaintiff attempted to exercise the option in an untimely fashion is not properly before this court, inasmuch as this argument was never advanced in the Supreme Court as a ground for denying the plaintiff’s motion (see, Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757). Bracken, J. P., Sullivan, Fiber and Pizzuto, JJ., concur.