Tabak v Steele

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[*1] Tabak v Steele 2009 NY Slip Op 51811(U) [24 Misc 3d 144(A)] Decided on August 20, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 20, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570279/09.

Morton Tabak, Bernard Tabak, Myra Tabak, and Clara Tabak, Petitioners-Landlords- Appellants,

against

Martha Steele a/k/a Martha Robinson, Respondent-Tenant-Cross Appellant, "John Doe" and "Jane Doe," Respondents-Undertenants.

Petitioner-landlords appeal from an order of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), dated April 7, 2008, which, inter alia, (1) granted tenant's cross motion to vacate the final judgment previously issued in landlord's favor; (2) denied landlords' motion to substitute Tabak Associates, LLC as petitioner and to amend the caption accordingly; and (3) denied landlords' motion for attorneys' fees and fair market use and occupancy for the period after August 12, 2003. Tenant cross-appeals from that portion of the aforesaid order which denied her cross motion to be restored to possession and granted that branch of landlords' motion for attorney's fees and fair market use and occupancy for the period prior to August 12, 2003.


Per Curiam.

Order (Jean T. Schneider, J.), dated April 7, 2008, modified to reinstate the final judgment in favor of landlords, grant landlords' motion to substitute Tabak Associates, LLC, as petitioner, and remand the matter to Civil Court for a hearing to determine the amount of attorney's fees and fair market use and occupancy due petitioners; as modified, affirmed, with $10 costs to appellant-landlords.

No basis was shown to vacate the final judgment previously issued in landlords' favor on the holdover petition (see Tabak v Steele, 38 AD3d 244 [2007], lv dismissed 9 NY3d 918 [2007). The individual Tabak landlords were authorized to continue the proceeding even after the transfer of their ownership interest during the pendency of the prior appeal (see CPLR 1018; [*2]Udell v Haas, 20 NY2d 862 [1967]; Buywise Holding, LLC v Harris, 31 AD3d 681 [2006]), and their failure to timely seek substitution of Tabak Associates, LLC as petitioner did not affect the continued progress of the proceeding (see Bova v Vinciguerra, 139 AD2d 797 [1988]).

With respect to attorney's fees, tenant is estopped from denying the existence of a lease agreement containing a legal fee provision, having obtained a legal fee award in an earlier phase of this proceeding upon her reliance on the existence of valid lease which contained an attorney's fee provision (see Nestor v Britt, 270 AD2d 192 [2000]). We direct a hearing to determine the amount of attorney's fees, as well as the fair market use and occupancy which accrued prior to tenant's vacatur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 20, 2009

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