Opinion
570472/07.
Decided December 19, 2008.
Landlord appeals from (1) a final judgment of the Civil Court of New York, New York County (David B. Cohen, J.), entered April 20, 2007, which dismissed the petition and awarded tenant a money judgment in a nonpayment summary proceeding; (2) an order (same court and Judge), dated April 20, 2007, which awarded tenant attorney's fees in the sum of $31,778.75; (3) an order (same court and Judge), dated January 23, 2007, which granted tenant's motion for attorney's fees and directed a hearing to determine the reasonable amount of such fees; and (4) an order (same court and Judge), dated November 20, 2006, insofar as it granted tenant leave to renew her application for attorney's fees. Tenant cross-appeals from so much of the aforesaid final judgment as limited her recovery of attorney's fees to the sum indicated.
Final judgment (David B. Cohen, J.), entered April 20, 2007, reversed, with $30 costs, petition reinstated and final judgment directed in favor of landlord awarding it possession and rent arrears in the amount of $2,500. Appeals from orders (David B. Cohen, J.), dated April 20, 2007, January 23, 2007 and November 20, 2006, dismissed, as subsumed in the appeal from the ensuing final judgment.
PRESENT: McKeon, P.J., Davis, Heitler, JJ.
The documentary evidence submitted at trial conclusively established that the monies ($2,253) paid by tenant to landlord in December 2005 did not represent the December rent but rather, a payment due to landlord under an agreement entered into by the parties settling a dispute over tenant's outstanding rent and other fees as of November 30, 2005. Indeed, prior to trial, tenant conceded on the record that the $2,253 payment was made to pay off her outstanding balance pursuant to the agreement and that the December rent remained unpaid. Even if landlord's records did not initially reflect a zero balance on tenant's account as of November 30, 2005, the apparent clerical error did not discharge tenant's obligation to pay the December rent, otherwise shown (and acknowledged) to be owed.
Although landlord may now have achieved prevailing party status, the imposition of attorney's fees against tenant would be "manifestly unfair" ( Wells v West 10th St. Assoc., 205 AD2d 431, 432) under the particular circumstances of this case.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.