Opinion
No. 570765/12.
2012-12-21
Judith Ann ABRAMS, Petitioner–Tenant–Appellant, v. 4–6–8, LLC, Transrealty Inc., and Michael King, Respondents–Landlord–Respondents, and The Department of Housing Preservation and Development (DHPD), Respondent.
Petitioner tenant appeals from (1) a judgment of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered on or about January 28, 2010, after a nonjury trial, which dismissed the petition in a Housing Part (“HP”) enforcement proceeding; and (2) a judgment of the same court (David J. Kaplan, J .), entered March 21, 2011, which, after a hearing, awarded respondents attorneys' fees in the principal amount of $93,682.37.
Present: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Judgment (David B. Cohen, J.), entered on or about January 28, 2010, affirmed, with $25 costs. Judgment (David J. Kaplan, J.), entered March 21, 2011, reversed, without costs, and the award of attorney's fees is vacated.
We sustain the trial court's dismissal of this Housing Part (HP) enforcement proceeding. A fair interpretation of the evidence, including the opinion testimony of landlord's acoustic expert, supports the court's fact-laden determination that the noise violation-relating to the noise emanating from the boiler directly beneath tenant's ground floor apartment-had been corrected prior to trial, and that the sound levels in her apartment did not violate the Building Code. The evidence showed and the court expressly found that landlord performed “significant work” in the boiler room and remedied the condition as of September 2008. These findings, resting in large measure on considerations relating to the credibility of witnesses, is entitled to deference on appeal ( see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495 [1992] ). In this regard, the trial court was in the best position to evaluate the credibility of the witnesses and to choose among conflicting expert opinions ( see Rite Aid of New York No. 4928 v. Assessor of Town of Colonie, 58 AD3d 963, 964 [2009],lv denied12 NY3d 709 [2009] ).
The award of counsel fees to the landlord is not warranted on this record, which shows that tenant had to resort to legal proceedings to compel landlord to cure the violation ( see Rosario v. 288 St. Nicholas Realty, 177 Misc.2d 78 [1998];cf. AD 1619 Co. v. VB Management, Inc., 259 A.D.2d 382 [1999] ), and that it took landlord many months to cure the violation ( see East Midtown Plaza Hous. Co. v. Cannings, 14 Misc.3d 127[A], 2006 N.Y. Slip Op 52481[U] [App Term, 1st Dept 2006] ). Nor was tenant entitled to attorneys' fees since, as Civil Court expressly found, tenant “still maintained and significantly prolonged this proceeding” after the violation had been cured. Thus, it would be unfair and inequitable to award either party attorney's fees in this case ( see generally Kralik v. 239 East 79th Street Owners Corp., 93 AD3d 569 [2012];Wells v. East 10th Street Assoc., 205 A.D.2d 431, 432 [1994],lv denied84 N.Y.2d 813 [1995] ), inasmuch as “neither can claim to have been merely the hapless victim of the other's combative litigation style” (Walenta v. Johnes, 257 A.D.2d 352, 354 [1999],appeal dismissed93 N.Y.2d 958 [1999] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.