Opinion
No. 570067/11.
2012-07-24
SIXTY SECOND STREET II, LLC, Petitioner–Landlord v. Vincent MINUTO, Respondent–Tenant–Respondent.
Landlord appeals from (1) that portion of an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J .), dated December 20, 2010, which denied its motion for attorneys' fees in a holdover summary proceeding; (2) an order, same court (John H. Stanley, J.), dated April 13, 2011, which granted tenant's motion for reargument of so much of the prior order as awarded landlord fair market use and occupancy and set the matter down for a hearing to determine the amount, and upon reargument, denied landlord's motion for fair market use and occupancy and vacated the direction for a hearing; and (3) an order (same court and Judge), dated June 23, 2011, which denied landlord's motion to reargue the April 13, 2011 order.
Present: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Orders (Joseph E. Capella, J.), dated December 20, 2010, and (John H. Stanley, J.), dated April 13, 2011, insofar as appealed from, affirmed, with one bill of $10 costs. Appeal from order (John H. Stanley, J.), dated June 23, 2011, dismissed, without costs, as nonappealable.
We sustain the denial of landlord's motion for attorneys' fees, since it failed to prove that a lease was executed containing a provision for the recovery of litigation costs ( see Orlowski v. Koroleski, 234 A.D.2d 436 [1996]; Partnership 92 W., L.P. v. Woods, 186 Misc.2d 445 [App Term, 1st Dept 2000] ). Nor has landlord established that there was any formal judicial admission by tenant on the attorneys' fee issue ( see Sound Communications, Inc. v. Rack & Roll, Inc., 88 AD3d 523 [2011];Roxborough Apts. Corp. v. Kalish, 29 Misc.3d 41 [App Term, 1st Dept 2010] ), or any basis to judicially estop tenant from denying the existence of a lease with a valid attorneys' fees provision ( see Baje Realty Corp. v. Cutler, 32 AD3d 307, 310 [2006] ).
We also sustain the denial of landlord's motion for fair market use and occupancy, since landlord previously stipulated to “accept use and occupancy at the rate previously payable as rent,” without any reservation of rights to seek an increased award ( see Metropolitan Life Ins. Co. v. Harris, NYLJ, May 28, 1998, at 28, col 3 [App Term, 1st Dept]; compare Cooper v. Schube, 101 A.D.2d 737 [1984] ). The law of the case doctrine sought to be invoked by landlord applies only between courts of coordinate jurisdiction and therefore is not binding on an appellate court ( see Rager v. McClosky, 305 N.Y. 75, 78 [1953] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.