Dorval v 540 W. 146th St. Hous. Dev. Fund Corp.

[*1] Dorval v 540 W. 146th St. Hous. Dev. Fund Corp. 2007 NY Slip Op 50717(U) [15 Misc 3d 133(A)] Decided on April 5, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., DAVIS, KLEIN HEITLER, JJ
07-063.

Joseph Dorval, Petitioner-Tenant-Respondent,

against

540 West 146th Street Housing Development Fund Corporation, Respondent-Landlord-Appellant, -and- Department of Housing Preservation And Development, Co-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), dated September 22, 2006, which, inter alia, granted tenant's motion for attorney's fees in a Housing Part proceeding.

Per Curiam:

Order (Joseph E. Capella, J.), dated September 22, 2006, modified to deny tenant's motion for attorney's fees, and as so modified, affirmed, with $10 costs.

Pursuant to the terms of the governing proprietary lease, tenant took possession of the subject cooperative apartment in its "as is" condition, and agreed to be responsible for the "painting and decorating required" and "maintenance and repair of the interior of the apartment." The Department of Housing Preservation and Development subsequently found 21 Housing Code violations in tenant's apartment, some of which related to the interior maintenance of the apartment. After tenant commenced the instant proceeding to compel landlord to correct the violations, landlord stipulated to make the necessary repairs pursuant to its obligation as statutory owner. The stipulation, however, expressly left open the issue of which party was responsible for the costs of the repairs and attorney's fees. In this posture, a finding that tenant is the prevailing party for purposes of attorney's fees is premature and must await a more developed record (see Kahn v 230-29 Equity Inc., 2 Misc 3d 140A, 2004 NY Slip Op 50302[U] [2004]).

This Constitutes the Decision and Order of the Court.
Decision Date: April 5, 2007