338 W. 46th St. Realty, LLC v Morton

[*1] 338 W. 46th St. Realty, LLC v Morton 2015 NY Slip Op 51845(U) Decided on December 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe III, P.J., Shulman, Ling-Cohan, JJ.
570421/10

338 West 46th Street Realty, LLC, Petitioner-Landlord-Respondent, -

against

George Morton, Edward Eisele, Robert Leonardi, Ute Keyes, a/k/a Ute Schmid and Robyn J. Davis, Respondents-Tenants- Appellants.

Tenants appeal from so much of an order of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), dated June 13, 2014, as denied their motion for an award of additional attorneys' fees in consolidated holdover summary proceedings.

Per Curiam.

Order (Arlene H. Hahn, J.), dated June 13, 2014, insofar as appealed from, modified to the extent of granting that portion of tenants' motion seeking additional attorneys' fees incurred in successfully defending the prior appeal to this court, and remanding the matter to Civil Court for a determination of the reasonable amount of such fees; as modified, order affirmed, without costs.

In view of landlord's prior unsuccessful appellate challenge to the determination awarding tenants $46,137.27 in attorneys' fees as the prevailing parties in these consolidated holdover proceedings (see 338 W. 46st St. Realty LLC v Leonardi, 32 Misc 3d 131[A], 2011 NY Slip Op 51333[U] [App Term, 1st Dept 2011]), tenants are entitled to an award of additional attorneys' fees for the time incurred in defending that fee award on the prior appeal (see Senfeld v I.S.T.A. Holding Co., 235 AD2d 345 [1997], lv dismissed 91 NY2d 956 [1998], lv denied 92 NY2d 818 [1998]; Washburn v 166 E. 96th St. Owners Corp., 166 AD2d 272 [1990]; Duell v Condon, 200 AD2d 549 [1994], affd 84 NY2d 773 [1995]). However, since landlord succeeded on that prior appeal to the limited extent that it challenged a distinct legal fee award relating to a DHCR proceeding, tenants are not entitled to any additional fees for time expended defending that separate award (see generally Conner v City of Santa Ana, 897 F2d 1487, 1494 [9th Cir 1990], cert denied 498 US 816 [1990] [awarding fees for only the time expended on issues which plaintiff succeeded on the merits in defending appeal]).

We agree, however, that tenants were not the prevailing parties in their prior appeal to the Appellate Division, First Department (see 338 W. 46th St. Realty, LLC v Morton, 103 AD3d 518 [2013]), and are not entitled to any additional fees relating to that appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: December 18, 2015