While it is generally impermissible to seek litigation fees related to the prosecution of an action in a separate action without an order severing the claim (see e.g. 930 Fifth Corp. v. King, 42 N.Y.2d 886, 887; 815 Park Ave. Owners, Inc. v. Metzger, 250 A.D.2d 471), here the doctrine against "splitting" a cause of action is not properly invoked to prevent plaintiff condominium from asserting its claim for legal fees incurred in prior litigation with defendant CC Ming since plaintiff's recovery of such legal fees by means of subsequently imposed common charges is expressly authorized by the Condominium By-Laws. CC Ming, as a unit owner, agreed to the separate assertion of plaintiff condominium's recoupment claim by voluntarily agreeing to be governed by the Condominium By-Laws (see Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530). Contrary to CC Ming's contention, the subject By-Laws do not condition the right of the condominium to recoup litigation-related expenses as common charges upon a judicial determination that a unit owner breached or violated a bylaw provision.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.