Opinion
SP 6269/10.
Decided January 28, 2011.
White, Cirrito Nally, LLP, Attorneys for Petitioner, Hempstead, New York.
William Friedman, Esq., Of Counsel to Jeffrey Seigel, Nassau/Suffolk Law Services Committee, Inc., Attorneys for Respondent, Hempstead, New York.
The respondent moves for an order "pursuant to CPLR §§ 404, 406, 2201, 3211(a)(1) (7), RPAPL §§ 711(2), 741 749, 42 U.S.C. § 1437 et seq. dismissing the petition on the grounds that all sums due and owing have been paid and the petitioner is not entitled to legal fees". The petitioner submits opposition and the respondent submits a reply.
The petitioner commenced this non-payment proceeding requesting a final judgment of eviction, awarding petitioner possession of the premises described as 52 Russell Place, Apt 4F, Freeport, New York. Further, petitioner demanded a money judgment against the respondent in the sum of $2,229.61 representing September 2010 and October 2010 rent plus late fees and attorney's fees. The premises are subject to the Rent Stabilization Law.
The parties entered into a stipulation on November 5, 2010. The stipulation provided, in pertinent part, the following:
(1)Respondent consents to the jurisdiction of the court.
(2)Respondent owes rent and added rent as follows:
—
(3)Respondent has paid in court $2,215.00.
(4)Respondent disputes payment of legal fees as added rent in the sum of $750.00.; and
(5)Counsel for respondent will submit a motion on the issue of tenants [sic] responsibility to pay the legal fee as added rent pursuant to the lease . . .
Pursuant to the terms of the stipulation above, the respondent now submits the instant motion. The respondent's counsel asserts that the petitioner is not entitled to attorney's fees since it was not the prevailing party. The respondent contends that since the petitioner is not a prevailing party, it is not entitled to recover attorney's fees. In addition, the respondent's counsel alleges that legal fees are in excess of the legally regulated rent and cannot be the basis of a possessory judgment in a rent stabilized tenancy.
In opposition, the petitioner asserts that when the respondent failed to pay rent in a timely fashion, it became obligated to expend legal fees to prosecute the non-payment action against the respondent. Thus, the petitioner argues that pursuant to paragraph 19 of the lease between the parties, the respondent is liable for attorney's fees as follows:
19. Attorney's fees. If Tenant shall at any time be in default hereunder, and if Landlord shall institute an action or summary proceeding against Tenant based upon such default, then tenant will reimburse Landlord for the expense of attorney's fees, costs, and disbursements thereby incurred by Landlord, so far as the same are reasonable in amount; and the amount of such expenses, costs and disbursements shall at the option of Landlord, be deemed to be additional rent hereunder, and shall be due from Tenant to Landlord on the first day of the month following the incurring of such respective expenses, or on the first day of any succeeding month. [emphasis added]
In addition, the petitioner alleges that since it obtained the central relief sought, i.e. the full payment of the rent due and owing, it is the prevailing party. Therefore, the petitioner claims it should be entitled, as a prevailing party, to recover the cost of legal fees pursuant to the term of the lease.
"Under the general rule, attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule" ( see Hooper Associates, Ltd. v. AGS Computers, Inc., 74 NY2d [1989]; citing Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5; Mighty Midgets v. Centennial Ins. Co., 47 NY2d 12, 21-22; City of Buffalo v. Clement Co., 28 NY2d 241, 262-263). It is well settled that only a prevailing party is entitled to recover attorney's fees and that, to be considered the prevailing party, a party must be successful with respect to the central relief sought ( Nestor v. McDowell 81 NY2d 410; Fatsis v. 360 Clinton Ave. Tenants Corporation 272 AD2d 571 [2d Dept 2000]; Village of Hempstead 8 AD3d 476 [2d Dept 2004]; Babylon Village Equities v. Mitchell , 11 Misc 3d 84 [App. Term, 2d Dept 2006]; ATM Four LLC v. Demezier, 22 Misc 3d 1132[A] [Nassau County Dist. Ct. 2009]).
Here, the petitioner's lease authorizes attorney's fees if the tenant is in default and the landlord institutes an action or summary proceeding. There was a default in this instance and the landlord instituted a summary proceeding. However, pursuant to the controlling case law, notwithstanding any provision in the lease to the contrary, only a prevailing party is entitled to attorney's fees. This Court is faced with the issue of deciding whether the petitioner qualifies as the prevailing party. The petitioner posits that it can be said to have prevailed, as the central relief sought was full payment of back rent.
However, in the case at bar, the respondent paid the back rent pursuant to a stipulation and the petitioner was not awarded a judgment of possession pursuant to the terms of the stipulation. While the petitioner did obtain the rent due from the respondent, this Court finds that the petitioner did not prevail within the criteria set forth in Nestor v. McDowell, supra. Inasmuch as the petitioner did not obtain the central relief sought, that is awarding the petitioner possession of the premises, it is not entitled to attorney's fees. Accordingly, the respondent's motion is granted and the petition is dismissed.
This constitutes the decision and order of this court.
So Ordered: