Opinion
Motion No. 2020-00740 KC
12-23-2022
Joseph Anello, Respondent, v. Paul Fiedler, Appellant.
Unpublished Opinion
MOTION DECISION
WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ.
DECISION & ORDER ON MOTION
Motion by appellant for leave to reargue an appeal from an order of the Civil Court of the City of New York, Kings County, dated December 5, 2019, which was determined in a decision and order of this court dated November 26, 2021, or, in the alternative, for leave to appeal to the Appellate Division from this court's decision and order.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied.
This is an appeal from an order denying tenant's motion for attorney's fees, based upon Real Property Law § 234, in an owner use holdover proceeding. Appellant argues on this motion that the statement in this court's decision and order that "[t]he September 1, 1994 lease that tenant attached to his motion for attorney's fees does not contain an attorney's fee provision" is factually incorrect. He now argues that paragraph 16 (D) (3) of the submitted lease is an attorney's fee provision that this court should have applied reciprocally to award him attorney's fees. However, paragraph 16 is titled "Tenant's default," and this proceeding does not involve a default by appellant. Furthermore, as appellant concedes, he did not identify paragraph 16 (D) (3) as an attorney's fee provision in his motion papers or his appellate brief-rather, in his appellate brief he quoted a paragraph titled "Legal Fees" from a different lease. Moreoever, he did not argue, in his motion papers or on appeal, that paragraph 16 (D) (3), which "is not an all-inclusive attorney's fee provision" (Matter of Casamento v Juaregui, 88 A.D.3d 345, 354 [2011]), can properly be the basis for an attorney's fee award in favor of landlord in an owner-use holdover proceeding or that it triggers the reciprocal right of a tenant to recover attorney's fees under Real Property Law § 234. Consequently, while the submitted lease likely contains an attorney's fee provision, contrary to tenant's argument on this motion, this court did not "overlook" anything that would change this court's determination of the appeal based on the arguments raised in the motion papers and on appeal.
Elliot, J., taking no part.