257 Cent. Park W., Inc. v Abraham

[*1] 257 Cent. Park W., Inc. v Abraham 2015 NY Slip Op 50837(U) Decided on May 29, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570502/11

257 Central Park West, Inc., Petitioner-Respondent,

against

Gideon Abraham, Respondent-Appellant.

Respondent Gideon Abraham appeals from a "decision and order" of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered on or about February 6, 2014, after a hearing, which awarded petitioner attorneys' fees in the principal sum of $151,314.43 in a holdover summary proceeding.

Per Curiam.

Appeal from "decision and order" (Debra Rose Samuels, J.), entered on or about February 6, 2014, deemed an appeal from the judgment (same court and Judge), entered on or about the same date, and so considered (see CPLR 5520[c]), judgment reversed, with $30 costs, and attorneys' fees award vacated.

Petitioner, though the prevailing party in this licensee holdover summary proceeding to recover possession of a parking space, is not entitled to an award of attorneys' fees. The proprietary lease provision on which petitioner relies (Paragraph 28) is inapplicable, since that provision specifically limits its application to actions or proceedings commenced as a result of respondent's default under the terms of the lease (see Dupais v 424 E. 77th Owners Corp., 32 AD3d 720 [2006]). Inasmuch as the underlying predicate notice of termination and holdover petition were not grounded in a default by respondent of a provision of the lease, but rather were based on the assertion that respondent's "license" to utilize the parking space at issue was "freely revocable," and that once petitioner revoked that licence, respondent had no right to continued possession, paragraph 28 does not require respondent to pay petitioner's legal fees (see Jo-Fra Props., Inc. v Bobbe, 81 AD3d 29, 35 [2010], lv dismissed 17 NY3d 933 [2011]; Jackson v Westminster House Owners Inc., 52 AD3d 404 [2008]; Dupais v 424 E. 77th Owners Corp., 32 AD3d at 722).

We find unavailing petitioner contention that it terminated respondent's license based upon his delinquency in paying parking fees and, so the argument goes, respondent's nonpayment of parking fees constituted a breach of the cooperative's house rules and, in effect, a breach of the lease. Respondent, however, has never been found to be in default of the lease by either this Court or Civil Court (see Horwitz v 1025 Fifth Ave. Inc., 34 AD3d 248 [2006]). Nor is there any evidence that petitioner followed the procedure for casting respondent in default under the lease [*2](see generally Maliner-Colvin v 85-10 34th Ave. Apt. Corp., 284 AD2d 434 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 29, 2015