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Nyc 107, LLC v. Fain Clark A/K/A Fain Kolinsky

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 5, 2011

NYC 107, LLC,
PETITIONER-LANDLORD-APPELLANT,
v.
FAIN CLARK A/K/A FAIN KOLINSKY,
RESPONDENT-TENANT-RESPONDENT.

Landlord appeals from that portion of an order of the Civil Court of the City of New York, New York County (Bruce E. Scheckowitz, J.), dated April 30, 2010, which granted tenant's motion for attorneys' fees and directed a hearing on the reasonable amount of attorneys' fees owed to tenant.

Per curiam.

NYC 107, LLC v. Clark

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2011

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ

Order (Bruce E. Scheckowitz, J.), dated April 30, 2010, affirmed, with $10 costs.

Civil Court providently exercised its discretion in awarding attorneys' fees to tenant as the prevailing party in this holdover proceeding, which was dismissed as moot after landlord abandoned its claim for possession and gave tenant a rent stabilized renewal lease (see Harmir Realty Co. v Ravinett, 2002 NY Slip Op 50326[U] [2002]). Notably, landlord's attorney failed to discontinue this proceeding -- which landlord brought to recover the apartment on the basis that the purported "market rate" lease had expired -- after either the Appellate Division's or the Court of Appeals' decision in Roberts v Tishman Speyer Props., L.P. (13 NY3d 270 [2009], affg 62 AD3d 71 [2009] [landlord not entitled to take advantage of luxury decontrol provisions of Rent Stabilization Law while simultaneously receiving tax incentive benefits under New York City's J-51 program]). Instead, following the Court of Appeals' Roberts decision, tenant moved for summary judgment dismissing the petition and for attorneys' fees, and landlord, in response, did not oppose dismissal and offered tenant a renewal lease. Landlord opposed tenant's motion only insofar as it sought attorney's fees, and cross-moved for a money judgment for use and occupancy allegedly owed by tenant.

In light of the particular circumstances of this unnecessarily prolonged proceeding, especially landlord's belated offer of a renewal lease and its demand for retroactive use and occupancy in a holdover proceeding about to be dismissed as moot, an award of attorneys' fees to tenant is proper (see Senfeld v I.S.T.A. Holding Co., 235 AD2d 345 [1997], lv denied 92 NY2d 818 [1998]; Harmir Realty Co. v Ravinett, 2002 NY Slip Op 50326[U]). At the hearing to determine the reasonable amount of the attorneys' fees owed to tenant, Civil Court shall additionally establish the reasonable amount of fees incurred by tenant in defending this appeal (see Duell v Condon, 200 AD2d 549, 549-550 [1994], affd 84 NY2d 773, 784, n 2 [1995]; Washburn v 166 E. 96th St. Owners Corp., 166 AD2d 272, 273 [1990]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: April 05, 2011

20110405

© 1992-2011 VersusLaw Inc.



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