Opinion
No. 570354/14.
2014-11-3
174 LLC, Petitioner–Landlord–Respondent, v. Abraham GOLDSTEIN, Respondent–Tenant–Appellant.
Tenant appeals from an order of the Civil Court of the City of New York, Bronx County (Eardell J. Rashford, J.), dated March 26, 2014, which denied his preanswer motion to dismiss the holdover petition and for an award of attorneys' fees.
Present SCHOENFELD, J.P., SHULMAN, LING–COHAN, JJ. PER CURIAM.
Order (Eardell J. Rashford, J.), dated March 26, 2014, reversed, with $10 costs, motion granted, petition dismissed, and matter remanded to Civil Court to determine the reasonable value of attorneys' fees due tenant.
Landlord's own correspondence of July 8, 2013—cautioning tenant that “you are harboring a dog ... a direct violation of your lease”—conclusively establishes landlord's knowledge of the presence of the dog as of that date. Landlord's acknowledged failure to commence an eviction proceeding within three months of that date constituted a waiver of the no-pet provision of the parties' lease agreement ( see Administrative Code of City of N.Y. § 27–2009.1[b]; Seward Park Housing Corp. v. Cohen, 287 A.D.2d 157 [2001] ). Although tenant's dismissal motion did not identify the particular subdivision of CPLR 3211(a) relied upon, the papers submitted made plain that dismissal was sought on the basis of documentary evidence (CPLR 3211[a][1]; see Schenectady Intl. Inc. v. Employers Ins. of Wausau, 245 A.D.2d 754 [1997] ).
Tenant's ultimate success on his Pet Law waiver defense warrants an award of attorneys' fees in his favor pursuant to the governing lease agreement and the reciprocal provisions of Real Property Law § 234 ( see 184 West 10th Street Corp. v. Marvits, 29 Misc.3d 134 [A], 2010 N.Y. Slip Op 51970[U] [App Term, 1st Dept 2010] ). I concur.