Opinion
570576/07.
Decided July 22, 2008.
Petitioner tenant appeals from 1) a final judgment of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered June 28, 2005, after a nonjury trial, which awarded respondent-landlord possession and attorney's fees in the amount of $1,200 in a Housing Part enforcement proceeding, and 2) a judgment (same court and Judge), entered August 19, 2005, after a hearing, which awarded landlord additional attorneys' fees in the amount of $1,242.
Final judgment (Gerald Lebovits, J.), entered June 28, 2005, and judgment (Gerald Lebovits, J.), entered August 19, 2005 reversed, without costs, possessory judgment and attorney's fees awards vacated, and matter remanded for further proceedings consistent with this decision.
PRESENT: DAVIS, J.P., SCHOENFELD, HEITLER, JJ.
In this Housing Part ("HP") enforcement proceeding commenced by tenant to compel a cure of demonstrated housing code violations, the evidence established that water continued to penetrate into tenant's apartment despite the remedial measures attempted by respondent-landlord. Based upon tenant's undisputed showing and landlord's acknowledgment of the existence of continued moisture in the apartment, the court's conclusion that the matter had been satisfactory "resolved" by landlord is unsupported by the record. In these circumstances, the award of legal fees to landlord cannot be sustained. Nor was tenant's supposed obligation to pay legal fees a proper basis to award a possessory judgment to the cooperative landlord. Even if, as the trial court found, the governing proprietary lease agreement provided that attorney's fees constituted "additional rents," possession was not an issue properly litigated in the context of this HP enforcement proceeding ( compare CCA § 110[a][7], [9] and RPAPL art 7).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.