This award is without prejudice to the petitioners' seeking an abatement in a separate proceeding and/or action, and is in addition to the petitioners' entitlement to attorney fees for the contempt motion. As for the petitioners' request for attorney fees in prosecuting this proceeding, it is well established that said fees are available in a tenant initiated HP proceeding, ( Rosario v. 288 St. Nicholas, 177 Misc 2d 78, 676 N.Y.S.2d 754 [App. Term, 1st Dept. 1998]), and the proprietary lease between the petitioners and respondent-landlord does have an attorney fee provision.
In an unappealed decision and order, Civil Court (Jack Stoller, J.), found, among other things, the existence of hazardous violations based on mold conditions in the petitioners' apartments, which were caused by a compromised concrete slab beneath the subject premises and resultant water intrusion. After Civil Court directed respondent-landlord to correct these conditions, petitioners achieved prevailing party status "since they had to resort to legal proceedings and incur legal costs in order to compel landlord's compliance with the Housing Maintenance Code" (Rosario v 288 St. Nicholas Realty, 177 Misc.2d 78 [App Term, 1st Dept 1998]). Paragraph 28 of the governing lease agreement was sufficiently broad to trigger a reciprocal right to attorneys' fees in petitioners' favor pursuant to Real Property Law ยง 234 (see Matter of 251 CPW Hous. LLC v Pastreich, 124 A.D.3d 401 [2015]; Graham Ct. Owner's Corp. v Taylor, 115 A.D.3d 50 [2014] , affd 24 N.Y.3d 742 [2015]; 65 W.E. Assoc. v Gari, 42 Misc.3d 129[A], 2013 NY Slip Op 52182[U] [App Term, 1st Dept 2013]; 354 E. 66th St. Realty Corp. v Curry, 40 Misc.3d 20 [App Term, 1st Dept 2013]).
In this regard, the trial court was in the best position to evaluate the credibility of the witnesses and to choose among conflicting expert opinions ( see Rite Aid of New York No. 4928 v. Assessor of Town of Colonie, 58 AD3d 963, 964 [2009],lv denied12 NY3d 709 [2009] ). The award of counsel fees to the landlord is not warranted on this record, which shows that tenant had to resort to legal proceedings to compel landlord to cure the violation ( see Rosario v. 288 St. Nicholas Realty, 177 Misc.2d 78 [1998];cf. AD 1619 Co. v. VB Management, Inc., 259 A.D.2d 382 [1999] ), and that it took landlord many months to cure the violation ( see East Midtown Plaza Hous. Co. v. Cannings, 14 Misc.3d 127[A], 2006 N.Y. Slip Op 52481[U] [App Term, 1st Dept 2006] ).
for shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys' fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant." The right granted by the statute to tenants who incur legal expenses "as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease" includes the right to recover the expenses incurred in tenant-initiated enforcement proceedings ( Rosario v 288 St. Nicholas Realty, 177 Misc 2d 78 [App Term, 1st Dept 1998]; 313 W. 100th St. Tenants Assn. v Kepasi Realty Corp., 143 Misc 2d 566 [App Term, 1st Dept 1989]). The issue thus presented is whether the lease provisions here entitling landlord to attorney's fees sufficiently fall within the ambit of Real Property Law ยง 234 so as to trigger the right of tenants afforded therein to recover their attorney's fees in this HP proceeding.
Furthermore, we note that, in the underlying holdover proceeding, plaintiff successfully sought to recover possession as well as use and occupancy since May 2002. Inasmuch as the parties entered into a stipulation of settlement whereby plaintiff prevailed on the "central relief sought," plaintiff is entitled to attorney's fees pursuant to the attorney's fees clause in the lease (see Rosario v 288 St. Nicholas Realty, 177 Misc 2d 78 [1998]; cf. Nestor v McDowell, 81 NY2d 410 [1993]). Accordingly, the lower court's judgment in favor of plaintiff rendered substantial justice between the parties in accordance with the rules and principles of substantive law (UDCA 1807).
DISCUSSION When a proprietary lease permits the Coop Board to recoup attorneys' fees in the event of litigation with a shareholder, and its is uncontested that the proprietary lease herein has such a provision, RPL ยง 234 affords the shareholder a reciprocal right to attorneys' fees if the shareholder was forced to initiate an HP proceeding to compel compliance and prevails on the central claim (HP Proceedings: A Primer, Gerald Lebovits, p. 118, 2007; see also Rosario v. 288 St. Nicholas Realty Inc 177 Misc.2d 78 ). Also relevant to a determination of prevailing party status, are the scope of the litigation and what was achieved within that scope (Solow v. Wellner, 205 A.D.2d 339, 340, affd 86 N.Y.2d 582 ).
This argument ignores the well-settled authority that a party securing the "central relief sought" in the case by means of a stipulated settlement still may be accorded the status of prevailing party. (See Sykes v RFD Third Ave. I Assocs., 39 AD3d 279, supra; Rosario v 288 St. Nicholas Realty, Inc., 177 Misc 2d 78 [AT 1st Dept 1998]. See also Thomasel v Perales, 78 NY2d 561.) Nor is defendants' conclusory assertion that litigation was not necessary to resolve the issues of remediation and relocation sufficient to demonstrate that plaintiffs cannot be considered the prevailing party.
Furthermore, we note that, in the underlying holdover proceeding, plaintiff successfully sought to recover possession as well as use and occupancy since May 2002. Inasmuch as the parties entered into a stipulation of settlement whereby plaintiff prevailed on the "central relief sought," plaintiff is entitled to attorney's fees pursuant to the attorney's fees clause in the lease ( see Rosario v. 288 St. Nicholas Realty, 177 Misc 2d 78; cf. Nestor v. McDowell, 81 NY2d 410). Accordingly, the lower court's judgment in favor of plaintiff rendered substantial justice between the parties in accordance with the rules and principles of substantive law (UDCA 1807).