Powers v. Velasco

—Judgment, Supreme Court, New York County (Herman Cahn, J.), entered March 29, 1996, awarding defendant the principal sum of $86,000 and bringing up for review an order, same court and Justice, entered January 22, 1996, which granted defendant’s motion for summary judgment on his counterclaim for conversion, unanimously affirmed, with costs. Appeal from the order unanimously dismissed, without costs, as subsumed within the appeal from the judgment. The motion court properly declined to allow plaintiff to circumvent the final preclusion order and the resulting award 198 of summary judgment dismissing her complaint seeking attorney’s fees by disallowing the assertion of the fee claim as a setoff to defendant’s counterclaim (see, Barrett v Kasco Constr. Co., 56 NY2d 830). The "sui generis” determination under the "peculiar circumstances” in Headley v Noto (22 NY2d 1, 5), upon which plaintiff relies, does not warrant a different result (see, Holley v Mandate Realty Corp., 121 AD2d 202, 204, affd 69 NY2d 721 [distinguishing summary judgment dismissal based upon preclusion from dismissal for neglect to prosecute]). Concur—Milonas, J. P., Rosenberger, Kupferman and Tom, JJ.