Rappaport, Hertz, Cherson & Rosenthal, P.C., Forest Hills (Jeffrey M. Steinitz of counsel), for appellant.
Cantor, Epstein & Mazzola, LLP, New York (Robert I. Cantor of counsel), for respondent.
Gonzalez, P.J., Mazzarelli, Moskowitz, Renwick, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 28, 2012, which denied defendant's motion for attorneys' fees, reversed, on the law and the facts, without costs, the motion granted, and the matter remanded to Supreme Court for a hearing on the amount of reasonable attorneys' fees owed to defendant.
In this dispute between defendant shareholder and plaintiff cooperative association, the tenant shareholder's successful defense against the coop's action and application for a preliminary injunction warrants an award of attorneys' fees in his favor (Real Property Law § 234; see Duell v Condon, 200 A.D.2d 549 [1st Dept 1994], affd 84 N.Y.2d 773 ; Sperling v 145 E. 15th St. Tenants' Corp., 174 A.D.2d 498, 499 [1st Dept 1991]).
On August 25, 2011, neighboring tenants of defendant complained of a stench emanating from his apartment. Plaintiff's staff did not first attempt to contact defendant, as per the proprietary lease, which provides for notice and an opportunity to cure any condition or effect repairs prior to entry by the owner,  but instead used the spare key at the desk to enter the apartment. Upon discovering that the key opened only the bottom and not the top lock, plaintiff's staff engaged a locksmith to drill out the lock. Once inside the apartment, plaintiff's staff ascertained that the source of the odor was defendant's pet cat. The board president instructed a member of the staff to purchase and put in fresh kitty litter. The staff did as they had been instructed and left the apartment, locking the bottom lock.
At the time, defendant was upstate as part of a search and rescue team dispatched in the aftermath of Hurricane Irene. When contacted by the president of the board, on August 26th, he responded that he would return to clean the apartment. Defendant returned on August 27th, at approximately 3:00 a.m., and removed the cat. The night doorman informed the president that defendant had brought the cat downstairs in a carrier. The board president testified that following the removal of the cat, "[t]he odor is dissipating, significantly so."
Plaintiff coop commenced an action by order to show cause filed on September 1, 2011, together with the summons and complaint, seeking injunctive relief and damages on account of defendant's alleged violation of the proprietary lease and house rules. Plaintiff sought a preliminary injunction authorizing it to remove "junk and filth" from the apartment, as well as defendant's "neglected" house cat, which plaintiff believed had been "abandoned" in the apartment "for over a week." Plaintiff asserted that the conditions present in the apartment "require an imminent and emergency response... because [defendant] seems unwilling or unable to address these conditions."
The court granted the ex parte application for a temporary restraining order pending a hearing on the motion to the extent of allowing plaintiff access to defendant's apartment to, inter alia, "remove all odor producing garbage and food stuffs as well as waste and areas of infestation."
Following the hearing, the court denied plaintiff's motion for a preliminary injunction, finding that plaintiff had violated the proprietary lease by failing to give defendant the requisite notice and opportunity to cure before resorting to self-help, as set forth in paragraph 19 of the lease. The court noted that while the affidavits offered by plaintiff's representatives in support of the TRO were "equivocal" as to whether the cat remained in the apartment, the testimony of those same individuals at the hearing unequivocally established that the cat had been removed prior to the time the application for a TRO had been made. The court stated, "So it wasn't equivocal, it was very clear that the cat had been removed. That was not presented to this court in anticipation of a TRO, there was not written notice followed by a period to cure. Instead you came running to the court." The court noted that although it had permitted only the removal of organic matter which might have caused the noxious smell, a video recording of the removal showed a "wholesale taking of things... not the kind of odor producing organic matter that the court instructed be removed." The court dismissed the action sua sponte and denied plaintiff's motion for attorneys' fees. The court also denied defendant's application for attorneys' fees as the prevailing party, opining that "equitable considerations dictate that the instant motion for attorneys' fees by [defendant tenant] must be denied."
We now reverse the order, grant the motion, and remand for a hearing on the amount of reasonable attorneys' fees owed to defendant tenant. Defendant was unquestionably the "prevailing party" under the relevant case law. The court sua sponte dismissed the action upon a finding that plaintiff was not entitled to a preliminary injunction and had in fact breached the lease by failing to give defendant the requisite notice and opportunity to cure before resorting to self-help.
Plaintiff's reliance on Ram v Stuart (248 A.D.2d 255 [1st Dept 1998]), for the proposition that a tenant who breaches the lease is not entitled to an award of attorneys' fees, even if successful, is misplaced. Assuming, arguendo, that defendant breached the lease and/or house rules (which has not been established),  plaintiff's remedy in the event of breach, as set forth in the lease, was to give 10 days' written notice and an opportunity to cure prior to entering the premises and resorting to self-help. Plaintiff having failed to comply with its duties under paragraph 19, any alleged nuisance in the apartment had not ripened into a breach of the lease.
The testimony was unequivocal that the cat had been removed in the early morning hours of August 27th, shortly after defendant had been contacted by the board president; accordingly, there was no continuing nuisance (and arguably no breach of the proprietary lease) at the time plaintiff made an application for a TRO. Indeed, the court noted that "[p]laintiff's representations in support of interim relief were not entirely forthright.... Plaintiff made much of the cat being a continuing source of odors, and alluded to the dangers to the animal itself in not having water and being trapped without care."
Plaintiff acted improperly by failing to give defendant the requisite notice and opportunity to cure and resorting to self-help before it commenced the action. Plaintiff failed to advise the court that defendant had removed the cat from the premises prior to the making of the motion, thereby ameliorating any alleged nuisance. Because plaintiff disingenuously chose not to disclose significant facts at the time it made an application for a TRO — facts that ultimately came to light during the course of the hearing — ...