EUNICE M. CARACAUS, PLAINTIFF-RESPONDENT,
CONIFER CENTRAL SQUARE ASSOCIATES, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
D. KOGUT, P.C., FAYETTEVILLE (WALTER D. KOGUT OF COUNSEL),
SERVICES OF CNY, INC., SYRACUSE (ERIC TOHTZ OF COUNSEL), FOR
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND
from an order of the Oswego County Court (Walter W. Hafner,
Jr., J.), dated January 23, 2013. The order denied the motion
of defendant to dismiss the amended complaint.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
that, after a tenant successfully defends an action commenced
by his or her landlord, the tenant may commence a new plenary
action against the landlord to recover the attorneys'
fees to which he or she may be entitled under Real Property
Law § 234.
(hereafter, landlord) owns and operates a low-income
apartment complex in the Village of Central Square, Oswego
County. Plaintiff (hereafter, tenant) rented an apartment in
this complex. The lease included the following clause:
[landlord] is forced to evict [tenant], [tenant] shall pay
[landlord] the expense incurred in obtaining possession of
the apartment and all other damages sustained by [landlord],
including attorneys' fees " (emphasis
undisputed that this clause triggered Real Property Law
§ 234, which confers upon tenants the "same benefit
[to attorneys' fees as] the lease imposes in favor of the
landlord" (Matter of Duell v Condon, 84 N.Y.2d
773, 780 ). 
parties' relationship evidently soured, and the landlord
commenced a summary eviction proceeding against the tenant in
the Central Square Village Court. In the
"wherefore" clause of her answer, the tenant
included a boilerplate, one-line request for attorneys'
fees, but she identified no legal theory for that request.
The landlord concedes that this cursory request for
attorneys' fees did not constitute a counterclaim under
Real Property Law § 234. The Village Court conducted a
hearing and rendered a judgment evicting the tenant, but the
Oswego County Court (Hafner, J.) ultimately reversed and
dismissed the eviction petition. No further proceedings were
conducted in connection with this eviction petition.
one month after the reversal, the landlord filed a new
summary eviction petition against the tenant in Village
Court. The tenant again included a boilerplate, one-line
request for attorneys' fees in the "wherefore"
clause of her answer; the landlord again concedes that this
cursory request for attorneys' fees did not constitute a
counterclaim under Real Property Law § 234. The second
petition was tried before a jury, which returned a verdict in
the tenant's favor.
tenant then commenced the instant action against the landlord
in County Court, seeking $25, 000 in attorneys' fees in
connection with both eviction proceedings. In her amended
complaint, the tenant explained that "[b]ringing such an
action is preferable to a motion or proceeding in the Village
Court... since the jurisdictional limit of the amount
awardable in the Village Court might otherwise be held to bar
much of the legitimate expense incurred herein and
contemplated to be awardable by [section 234]"
(see UJCA 202, 208 [monetary jurisdiction of Town
and Village courts generally limited to $3, 000]).
landlord, citing 930 Fifth Corp. v King (42 N.Y.2d
886 ), moved to dismiss the instant action under CPLR
3211 (a) (7), arguing that the New York courts have
"long held... that attorneys' fees for one action
may not be sought in a separate action such as this."
"Pursuant to that Court of Appeals authority, " the
landlord reasoned, the amended complaint "fails to ...