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H & H Realty Property LLC v. Elizabeth Rodriguez

New York Supreme and/or Appellate Courts Appellate Term, First Department


June 27, 2011

H & H REALTY PROPERTY LLC,
PETITIONER-LANDLORD-APPELLANT,
v.
ELIZABETH RODRIGUEZ,
RESPONDENT-TENANT-CROSS- APPELLANT.

Per curiam.

H & H Realty Prop. LLC v Rodriguez

Decided on June 27, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Schoenfeld, Torres, JJ

Landlord, as limited by its briefs, appeals from (1) those portions of an order of the Civil Court of the City of New York, Bronx County (Andrew E. Lehrer, J.), dated June 14, 2010, which denied its cross motion for summary judgment and granted tenant's motion for summary judgment dismissing the petition in a holdover summary proceeding, (2) that portion of an order (same court and Judge), dated July 6, 2010, which granted tenant's application for attorney's fees and directed a hearing to determine the reasonable amount of such fees, and (3) that portion of an order (same court and Judge), dated August 18, 2010, which awarded tenant $6,606.25 in attorney's fees. Tenant, as limited by her briefs, cross-appeals from so much of the August 18, 2010 order, as denied her cross motion for Rule 130 sanctions and limited her recovery of attorney's fees to the principal sum of $6,606.25.

Orders (Andrew E. Lehrer, J.), dated June 14, 2010 and July 6, 2010, respectively, affirmed, with one bill of $10 costs payable to tenant. Order (Andrew E. Lehrer, J.), dated August 18, 2010, modified to increase tenant's recovery of attorney's fees to the principal sum of $10,000, and matter remanded to Civil Court for entry of an appropriate amended judgment; as modified, order affirmed, without costs.

The evidence presented on the parties' respective motions for summary judgment showed, and it is not seriously disputed, that the New York City Buildings Department issued several violations in August 2009, requiring the landlord to repair, among other conditions in tenant's apartment, "huge cracks" in the living room ceiling; that the violations remained open until mid-October 2009, when, in the face of landlord's inaction, DHPD effectuated the necessary repairs; and that landlord did not request access to tenant's apartment to make the repairs until November 2009, well after the agency had completed its repair work. In this posture, summary judgment dismissal of the holdover petition was warranted, there being no showing that tenant "unreasonably refused" the landlord's (belated) request to gain access to the apartment (see Rent Stabilization Code [9 NYCRR] § 2524.3[e]) ostensibly to make repairs already undertaken by the agency. Nor may the landlord now inject into the litigation a claim that tenant maliciously, or through gross negligence, damaged the apartment ceiling (see Rent Stabilization Code [9 NYCRR] § 2524.3[b]), since no such theory of recovery was set forth in the predicate notice utilized by landlord.

We agree that tenant achieved prevailing party status for the purpose of recovering attorney's fees. However, on this record, and considering, among other factors, the results obtained and counsel's background and experience, we increase the amount of the fee award to the extent indicated.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: June 27, 2011

20110627

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