Summary
In AD 1619 Co., the Appellate Division reversed the Appellate Term's decision which precluded petitioner's recovery of attorney fees.
Summary of this case from Grand Concourse Estates, LLC v. TureOpinion
March 23, 1999
Appeal from the Supreme Court, First Department (Parness, P. J., and Freedman, J., concurring; McCooe, J., dissenting in part).
The record does not establish that petitioner landlord intentionally relinquished its claim for attorneys' fees ( see, Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968), and respondent tenant can make no tenable claim that amendment of the first nonpayment petition to include a claim for attorneys' fees would be surprising or prejudicial, since respondent was aware of article 19 of the lease providing for the landlord's recovery of attorneys' fees if the landlord prevailed in litigation over nonpayment of rent, and, indeed, since the landlord's petition in the second of the two consolidated nonpayment proceedings expressly demanded such fees. Appellate Term properly concluded that petitioner landlord prevailed on its substantive nonpayment claim, particularly where, prior to trial, respondent tenant paid all of the outstanding arrears and abandoned its alleged defense of partial constructive eviction ( see, Excelsior 57th Corp. v. Winters, 227 A.D.2d 146, lv denied 1996 N.Y. App. Div. LEXIS 9554 [App. Div., 1st Dept, Sept. 17, 1996]), and that rationale applies equally to the first proceeding.
Concur — Ellerin, P. J., Lerner, Andrias and Saxe, JJ. [ See, 175 Misc.2d 1021.]