Opinion
570233/03.
Decided September 10, 2003.
Tenants appeal from an order of the Civil Court, New York County, dated December 5, 2002 (Timmie Erin Elsner, J.) denying tenants' motion for attorneys' fees in nonpayment summary proceedings and from an order of the same court and Judge dated January 28, 2003 granting reargument, and upon reargument, adhering to its prior order.
PRESENT: LUCINDO SUAREZ, P.J., WILLIAM J. DAVIS, MARTIN SCHOENFELD, Justices.
Order dated December 5, 2002 (Timmie Erin Elsner, J.) affirmed, with $10 costs.
Appeal from order dated January 28, 2003 (Timmie Erin Elsner, J.) dismissed, without costs, as academic.
Tenants' motion for attorneys' fees was properly denied since it is clear that the parties stipulated on the record to discontinue the initial nonpayment proceeding without prejudice to either side, and there was no "ultimate outcome" of that proceeding in tenants' favor (see, Centennial Restorations Co. v. Wyatt, 248 AD2d 193, 197; Elkins v. Cinera Realty, 61 AD2d 828). We further note the absence of a provision for attorneys' fees as a condition of discontinuance (see, CPLR 3217[b]).
This constitutes the decision and order of the court.