APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
March 24, 2011
JILL GENSON, INDIVIDUALLY AND ON BEHALF OF HER INFANT SON, RANDY GENSON,
SIXTY SUTTON CORP.,
Sixty Sutton Corp.
Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 24, 2011
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
Plaintiff, individually and on behalf of her infant son, as limited by her briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Kibbie F. Payne, J.), entered October 6, 2010, as denied her motion for summary judgment dismissing that branch of defendant's second counterclaim seeking attorneys' fees.
Order (Kibbie F. Payne, J.), entered October 6, 2010, affirmed, with $10 costs.
We agree that defendant-landlord's second counterclaim, insofar as it seeks attorneys' fees, is not ripe for summary dismissal. Depending on the substantive resolution of the parties' competing claims and whether landlord ultimately achieves prevailing party status, the substantial rent and/or maintenance arrearages attributed to plaintiff-tenant in the second counterclaim may serve to trigger the landlord's entitlement to attorneys' fees under paragraph 30 of the parties' proprietary lease agreement, which authorizes landlord's recovery of attorneys' fees for actions or proceedings brought as a result of "any" lease "default" by the tenant. That landlord advanced its breach of lease claim in the form of a counterclaim in this plenary action commenced by tenant, and not by way of its own independent action or proceeding, does not preclude its recovery of contractual attorneys' fees otherwise shown to be due (see Duane Reade v York Towers, Inc., 22 AD3d 246 ; Britti Corp. v Perry Thompson Third LLC, 26 AD3d 235 ; see also CPLR 3019[d]; but see H.L. Klion, Inc. v Venimore Bldg. Corp., 21 AD2d 673 , mod on other grounds 15 NY2d 601 ), particularly in these circumstances where tenant affirmatively asserted her own entitlement to attorneys' fees in her reply to landlord's counterclaim. Enforcement of the lease attorney fee provision agreed upon by the parties should not be made to hinge on the outcome of a race to the courthouse.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date:March 24, 2011
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