Opinion
January 12, 1998
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the defendant's contention, the Supreme Court properly denied its motion to dismiss the plaintiff's complaint since there was no determination in a prior action between the parties concerning the merits of the plaintiff's claim for attorneys' fees under the alleged indemnity agreement now at issue (see, Union Carbide Corp. v. Ogden Allied E. States Maintenance Corp., 186 A.D.2d 386).
We make no determination as to the appellant's claim that the plaintiff impermissibly split its cause of action for attorneys' fees by not seeking this relief in the prior action (see, 222 Bloomingdale Rd. Assocs. v. NYNEX Props. Co., ___ A.D.2d ___ [2d Dept, May 11, 1998]). This claim is raised for the first time on appeal and is not properly before us (see, Green Point Sav. Bank v. Oppenheim, 217 A.D.2d 571).
O'Brien, J.P., Thompson, Joy and Florio, JJ., concur.