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Skyline Terrace Cooperative, Inc v. Miriam Butler

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


August 5, 2011

SKYLINE TERRACE COOPERATIVE, INC.,
RESPONDENT,
v.
MIRIAM BUTLER, APPELLANT, -AND- "JOHN DOE" AND "JANE DOE",
UNDERTENANTS.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Marina Mundy, J.), entered May 20, 2010.

Skyline Terrace Coop., Inc. v Butler

Decided on August 5, 2011

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The order, insofar as appealed from, denied tenant's motion for an award of attorney's fees in a holdover summary proceeding.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Landlord, a residential cooperative corporation, commenced this holdover proceeding after terminating tenant's proprietary lease based upon tenant's violation of lease provisions requiring that tenant install noise-reducing carpeting, avoid excessive noise, and permit inspections. During the pendency of the proceeding, an inspection revealed that the carpeting that had been installed in tenant's apartment in an attempt to cure the breach did not satisfy the lease provision with respect to carpeting. In the order from which tenant appeals, the Civil Court concluded that, while tenant had subsequently cured the inspection and carpeting violations, she had not done so before the proceeding had commenced. Landlord proved unable to proceed to trial on the noise violation owing to the death, shortly before trial was to commence, of its principal witness, a neighbor of tenant. Tenant having cured the remaining violations, landlord consented to an order discontinuing the petition with prejudice. Tenant moved for an award of attorney's fees as the purportedly prevailing party (see Real Property Law § 234), and landlord cross-moved for the same relief. The Civil Court denied both motions, concluding that "neither party can be said to be the prevailing party." Tenant appeals from so much of the order as denied her motion.

Although the summary proceeding was discontinued without resolution of the alleged noise violation, the record establishes that tenant breached the lease by failing to install the required carpeting and to permit inspections, and did not cure those violations during the notice to cure period. On the facts and circumstances presented, at best, the outcome is "mixed" and "not substantially favorable to either party" (Pelli v Connors, 7 AD3d 464 [2004]; see Matter of Stepping Stones Assoc. v Seymour, 48 AD3d 581, 584 [2008]; Carlton Estates, Inc. v Cruz, 31 Misc 3d 144[A], 2011 NY Slip Op 50878[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; First Ave. Vil. Corp. v Harrison, 17 Misc 3d 20, 21 [App Term, 1st Dept 2007]). Thus, tenant's motion was properly denied and the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: August 05, 2011

20110805

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