Opinion
Index No. 523862/2019 Motions Sequence No. 2
06-17-2022
WILLIAM ARMSTRONG, JENNIFER MANCINI, PROPEL-ANT INC., NORMAN YUN, NAM HEE LEE, KEIRNAN MONAGHAN and NUSRAT DURRANI, Plaintiff(s), v. DUMBO LOFTS RENTAL LLC, Defendant(s).
Unpublished Opinion
PRESENT: CARL J. LANDICINO, J.S.C. Justice.
DECISION AND ORDER
CARL J. LANDICINO, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in review of this motion:
Papers Numbered (NYSCEH)
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed....................................................................107-113, Opposing Affidavits (Affirmations)....................................................................120-123, Reply Affidavits (Affirmations)............................................................................125-128, Memoranda of Law...............................................................................................114
After a review of the papers and upon default in appearance of the Plaintiff at oral argument the Court finds as follows:
Motion Sequence #2 and #3 were scheduled for oral argument on the same date and time. Plaintiff failed to appear, therefore Plaintiffs cross-motion (Motion Sequence #3) was marked off the calendar. The papers considered herein relate to Motion Sequence #2 and will only be read in relation to Defendant's Motion Sequence #2.
The Defendant Dumbo Lofts Rental, LLC (hereinafter the "Defendant") now moves (motion sequence #2) against Plaintiff Keirnan Monaghan (hereinafter "Monaghan") for an Order 1) pursuant to CPLR 3212 awarding the Defendant summary judgment on its first counterclaim for attorneys' fees, 2) pursuant to CPLR 603, severing the Defendant's first counterclaim against
Monaghan from the remaining plaintiffs herein; and 3) scheduling a hearing or setting a briefing schedule for the determination of reasonable attorneys'' fees, costs, and disbursements to be awarded against Monaghan. The Plaintiff argues that it is entitled to an award of attorneys' fees, costs, and disbursements as it relates to Monaghan, whose claims were dismissed in furtherance -of this Court's Decision and Order dated June 7, 2021. Article 19 of the Lease provides that "(Yjenter shall be liable to Owner in the event Owner incurs legal fees in the enforcement of any of Owner's rights under this lease or pursuant to law."
The Plaintiff opposes this motion. In opposition to the motion, the Plaintiff argues that the instant proceeding is not one wherein the owner sought enforcement of its rights under the Lease. Moreover, the Plaintiff argues that case law supports the position that attorneys' fees are not available in cases where tenants have made claims of rent overcharge, even if those claims are ultimately dismissed.
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it "should only be employed when there is no doubt as to the absence of triable issues of material fact." Kolivas v. Kirchoff, 14 A.D.3d 493 [2d Dept 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 1341, 320 N.E.2d 853[1974]. The proponent for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74 [2d Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320,324,508 N.Y.S.2d 923,501 N..E.2d 572 [1986], Wimgrad v. New York Univ. Med. Or., 64 N.Y.2d 851, 853,487 N.Y.S.2d 316,476 N.E.2d 642 [1985]. "In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inference must be resolved in favor of the nonmoving party." Adams v. Bruno, 124 A.D.3d 566, 566, I N.Y.S.3d 280, 281 [2d Dept 2015] citing Valentin v. Parisio, 119 A.D.3d 854,989 N.Y.S.2d 621 [2d Dept 2014]; Escobar v. Velez, 116 A.D.3d 735, 983 N.Y.S.2d 612 [2d Dept 2014].
Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" Garnham & Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493 [2d Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d518,520,824N.Y.S.2d 166,168 [2d Dept 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559,610 N.Y.S.2d 50 [2d Dept 1994].
Turning to the merits of the Defendant's motion, the Court finds that the Defendant has not met its prima facie burden to establish, as a matter of law, that it is entitled to attorneys' fees under the Lease. The Defendant contends that it is entitled to attorneys' fees given that it has incurred attorneys' fees in relation to defending against the Plaintiffs previously dismissed claims of rent overcharge. The Defendant further contends that this entitlement is covered by Article 19 of the Lease that provides that "[r]enter shall be liable to Owner in the event Owner incurs legal fees in the enforcement of any of Owner's rights under this lease or pursuant to law." However, the cases relied upon by the Defendant are not applicable to the issue before the Court. The cases relied upon by the Defendant do not relate to tenant-initiated actions for rent overcharge claims. Nestor v. McDowell involved an ejectment action brought by a landlord against an occupant. See Nestor v. McDowell, 81 N.Y.2d 410, 415,615 N.E.2d 991, 993 [1993]. Casamento v. Juaregui involved a landlord-initiated summary proceeding seeking to evict a former tenant. In that action the tenant prevailed. See Casamento v. Juaregui, 88 A.D.3d 345,346,929 N.Y.S.2d 286,287 [2d Dept 2011].
Accordingly, the Court finds that a rent overcharge action is not covered by the Lease provisions at issue. The Lease terms control the determination of a right to attorneys' fees. See Jerulee Co. v. Sanchez, 43 A.D.3d 328, 329, 841 N.Y.S.2d 242, 243 [1st Dept 2007]; see also Rossman v. Windermere Owners LLC, 111 A.D.3d 429, 430, 974 N.Y.S.2d 395, 396 [2d Dept 2011]. The Defendant was not seeking to enforce its rights against Monaghan in this action. It was Monaghan who sought to enforce his rights against the Defendant under a claim of rent overcharge, A tenant should not be deterred from commencing a rent overcharge proceeding for fear of being responsible for the Landlord's attorneys' fees unless the lease is clear on the issue thereby and alerts the tenant of the possible payment of such fees. The provision at issue, under the circumstances of the subject controversy, does not provide for the Defendant landlord to recover attorneys' fees against Plaintiff Monaghan. Moreover, upon searching the record, the Court finds that Plaintiff Monaghan be awarded summary judgment as against the Defendant dismissing the counterclaim for attorneys' fees against Monaghan. See Bsi v. Raimo, 195 A.D.3d 590, 150 N.Y.S.3d 104 [2d Dept 2021], CPLR 3212(b). Accordingly, the Defendant's motion is denied.
Based on the foregoing, it is hereby ORDERED as follows:
Defendant's (motion sequence #2) for summary judgment on its counterclaim for attorneys' fees as against Plaintiff Monaghan is denied and the counterclaim for attorney's fees by the Defendant as against Plaintiff Monaghan is dismissed.
This constitutes the Decision and Order of the Court.