Opinion
[662 N.Y.S.2d 981]Borah, Goldstein, Altschuler & Schwartz, P.C., New York City (Jeffrey R. Metz, of counsel), for appellants.
Fishman & Neil, New York City (James B. Fishman, of counsel), for respondents.
Before OSTRAU, P.J., and FREEDMAN and DAVIS, JJ.
PER CURIAM.
Order entered October 7, 1996 (Margaret Taylor, J.) affirmed, with $10 costs.
After prevailing in this court on his succession claim for possession of the rent controlled apartment premises (Classic Properties v. Martinez, 168 Misc.2d 514, 646 N.Y.S.2d 755), respondent was granted attorney's fees in Civil Court. We conclude that affirmance is mandated upon the authority of Matter of Duell v. Condon, 84 N.Y.2d 773, 622 N.Y.S.2d 891, 647 N.E.2d 96, where the Court of Appeals determined that "... Real Property Law § 234 applies to a statutory tenant under the rent control law even if not a signatory to the lease" (id, p. 784, 622 N.Y.S.2d 891, 647 N.E.2d 96 [emphasis supplied] ). Although Duell was decided in a somewhat different factual context, its core legal holding derives from the broad definition of a "tenant" under rent control as "any person who is entitled to possession, use or occupancy of the premises" (Duell v. Condon, supra, p. 782, 622 N.Y.S.2d 891, 647 N.E.2d 96). Included within this category are those succeeding to the controlled tenancy (see, 9 NYCRR 2204.6[d] ), such as respondent, who are entitled to invoke section 234 if their predecessors executed a lease containing an attorney's fees provision.
Landlord's argument that lack of mutuality is a bar to respondent's recovery of legal fees is unpersuasive since landlord could have joined the estate of the deceased tenant in this proceeding and, if successful, obtained an award of attorney's fees against that entity (see also, Greenberg v. Coronet Properties Co., 167 A.D.2d 291, 562 N.Y.S.2d 33 [landlord granted attorney's fees directly against party who failed to establish succession claim] ). Reliance upon our decision in 245 Realty Associates v. Sussis, 170 Misc.2d 901, 655 N.Y.S.2d 781 is also misplaced. The denial of attorney's fees to the prevailing successor in that case was premised upon the contractual nature of the rent stabilization scheme, which more narrowly defines the term "tenant" as persons named on a lease as lessees.