Opinion
2021-06040 Index 158591/18
11-04-2021
Christina Isaly-Liceaga, Plaintiff- Respondent, v. Thomas Pickarski, Defendant-Appellant. Appeal No. 14566 Case No. 2021-00541
Catharine Grad, P.C., New York (Catharine A. Grad of counsel), for appellant. Rosenberg & Estis, P.C., New York (Bradley S. Silverbush of counsel), for respondent.
Catharine Grad, P.C., New York (Catharine A. Grad of counsel), for appellant.
Rosenberg & Estis, P.C., New York (Bradley S. Silverbush of counsel), for respondent.
Before: Acosta, P.J., Renwick, Kapnick, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Louis L. Nock, J.) entered November 11, 2020, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to discontinue the action and denied defendant's cross motion for summary judgment on his counterclaim for attorneys' fees, unanimously reversed, on the law, with costs, to condition said discontinuance upon the payment by plaintiff of defendant's reasonable attorneys' fees from the inception of this action to date and to remand the matter for determination of a suitable amount.
The court should have granted defendant tenant reasonable attorney's fees as the prevailing party, pursuant to the terms of the parties' lease (see Real Property Law § 234). Contrary to the landlord's assertion, the tenant was the prevailing party regardless of whether the action was formally discontinued, since a tenant is entitled to recover fees "when the ultimate outcome is in his favor, whether or not such outcome is on the merits" (Centennial Restorations Co. v Wyatt, 248 A.D.2d 193, 197 [1st Dept 1998] [internal quotation marks omitted]). Ultimately, plaintiff landlord sought a discontinuance because, as the record reflects, the relief sought - installation of the rugs and padding and the abatement of noise complaints - took place before this action was commenced. Thus, defendant tenant achieved prevailing party status when his defense of the action was confirmed as true.