Opinion
570004/03.
Decided December 27, 2004.
Tenants appeal from a final judgment of the Civil Court, New York County, entered March 26, 1997 (Marcy Friedman, J.) granting summary judgment in favor of landlord on the issue of possession and setting the remaining issues down for trial and from an order of the same court dated May 7, 1997 after a hearing (Judith J. Gische, J.) setting use and occupancy at $4,330 per month, issuing a warrant, staying execution for 90 days and severing the claim for attorneys' fees and from a sua sponte order of the same court dated May 8, 1997 (Judith J. Gische, J.) amending the May 7, 1997 order and setting use and occupancy at $4,530 per month in a holdover summary proceeding. Tenants also appeal from a final judgment of the same court dated July 22, 1997 after a nonjury trial (Judith J. Gische, J.) awarding landlord a money judgment for additional rent consisting of tenants' pro rata share of operating expenses in the principal sum of $15,902.35 through October 1991, plus interest from November 1, 1991, and from an order of the same court dated January 12, 1998 (Marcy Friedman, J.) granting landlord attorneys' fees and setting the matter down for a hearing on the amount of reasonable attorneys' fees due landlord. Tenants additionally appeal from an order of the same court dated October 26, 1999 (Guy P. Tomlinson, J.) granting attorneys' fees to landlord in the sum of $100,913, plus $4,450 in disbursements, for a total of $105,363, plus interest from the date of entry of that order, with costs.
Final judgment entered March 26, 1997 (Marcy Friedman, J.) and final judgment dated July 22, 1997 (Judith J. Gische, J.) affirmed, with $25 costs.
Order dated May 7, 1997 (Judith J. Gische, J.), as amended May 8, 1997 (Judith J. Gische, J.) and order dated October 26, 1999 (Guy P. Tomlinson, J.) affirmed, with $10 costs.
Appeal from order dated January 12, 1998 (Marcy Friedman, J.) dismissed, without costs, as subsumed in the appeal from the order dated October 26, 1999.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
In this commercial holdover proceeding against a law firm and its individual partners, Civil Court properly found that landlord was entitled to possession, additional rent consisting of operating expenses through October 1991, use and occupancy and attorneys' fees as the prevailing party. Tenants' most recent five-year written lease expired on September 30, 1988. Tenants remained in possession as month-to-month tenants for several additional years.
As correctly held by Civil Court, the terms and conditions of the expired lease continued into the holdover month-to-month tenancy ( City of New York v. Pennsylvania R.R. Co., 37 NY2d 298; 1 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 10.2 [4th ed]). None of the exceptions to this rule listed in Transit Drive-In Theater v. Outdoor Theatre Caterers, 53 AD2d 1009 (1976), apply to the case at bar.
Here, tenants were obligated to pay their pro rata share of operating expenses as additional rent under paragraph 41 of the rider to the lease, a payment obligation which carried over into the holdover tenancy. The trial court credited landlord's testimony that although landlord failed to retain back-up bills for operating expense increases, landlord billed tenants for these charges, as reflected in a tenant ledger entered into evidence maintained by landlord's managing agent. Furthermore, the lease contained a "no-waiver" clause (paragraph 41[H]) in the event that landlord failed to bill tenants for their "continuing obligation" to pay these rent adjustments ( cf. Weisblatt v. Schwimmer, 249 AD2d 297).
The court's award of attorneys' fees under paragraph 19 of the parties' expired lease was within reasonable limits and is not disturbed. The court appropriately evaluated the attorney's testimony and records as to the nature, extent and necessity of the legal services rendered in this long-pending proceeding, which included an appeal, a use and occupancy hearing, a trial, and an attorneys' fee hearing, together with attendant motion practice ( Jordan v. Freeman, 40 AD2d 656).
Finally, inasmuch as tenants did not appeal from or move to reargue the court's order of June 3, 1996 (Jay Stuart Dankberg, J.) which found that landlord's copy of the parties' lost lease was true and accurate, that order was the law of the case and binding upon the parties ( Andrea v. du Pont de Nemours Co., 289 AD2d 1039, lv denied 97 NY2d 609, lv dismissed 97 NY2d 749).
We have considered tenants' remaining arguments and find them to be without merit.
This constitutes the decision and order of the court.