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Cox v. First National Realty & Construction Corp.

Appellate Division of the Supreme Court of New York, First Department
Nov 13, 1975
50 A.D.2d 535 (N.Y. App. Div. 1975)

Opinion

November 13, 1975


Order entered in the Supreme Court, New York County, on June 9, 1975, granting defendant-respondent's motion to dismiss the eleventh cause of action, unanimously affirmed, without costs or disbursements. A general rule of construction is that absent a clear expression of intent to the contrary, and in the absence of legislative intent, statutes are to be construed as prospective only. (Matter of Mulligan v Murphy, 14 N.Y.2d 223, 226.) A reading of section 234 Real Prop. of the Real Property Law indicates there is no clear expression of intent that it be retroactive, nor does research disclose any legislative intent to that effect. We read section 234, providing that if a lease affords recovery of attorney's fees to the landlord, then a like covenant in favor of the tenant shall be implied, as creating a right of action where none existed and as such operating prospectively (Longines-Wittnauer Watch Co. v Barnes Reinecke, Inc., 15 N.Y.2d 443). The lease under which plaintiff seeks to recover attorney's fees was executed before the effective date of section 234. Only those landlords whose leases were executed after the effective date of the statute and provide for attorney's fees, will be subject to this new liability. Retrospective application would impose an unexpected liability that, if known, might have induced those burdened with it to avoid it (cf. People ex rel. D.W. Griffith, Inc. v Loughman, 249 N.Y. 369, 379).

Concur — Markewich, J.P., Tilzer, Capozzoli, Lane and Nunez, JJ.


Summaries of

Cox v. First National Realty & Construction Corp.

Appellate Division of the Supreme Court of New York, First Department
Nov 13, 1975
50 A.D.2d 535 (N.Y. App. Div. 1975)
Case details for

Cox v. First National Realty & Construction Corp.

Case Details

Full title:DENTON S. COX, Appellant, v. FIRST NATIONAL REALTY CONSTRUCTION CORP. et…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 13, 1975

Citations

50 A.D.2d 535 (N.Y. App. Div. 1975)