Harmon v Mervine

[*1] Harmon v Mervine 2016 NY Slip Op 51739(U) Decided on December 8, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Gonzalez, JJ.
570040/16

James D. Harmon, Jr. & Jeanne Harmon, Petitioners-Landlords- Cross-Appellants,

against

Cheryl Mervine, Respondent-Tenant-Appellant.

Tenant, as limited by her briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), dated July 11, 2014, which denied her motion for attorney's fees in a holdover summary proceeding. Landlords cross-appeal from so much of the same order as denied their cross motion for attorney's fees.

Per Curiam.

Order (Brenda S. Spears, J.), dated July 11, 2014, modified to grant tenant's motion for attorney's fees and remanding the matter for a hearing to determine the reasonable value of attorney's fees due tenant; as modified, order affirmed, without costs.

Tenant achieved prevailing party status entitling her to recover attorney's fees upon the dismissal of the underlying owner use holdover proceeding (see Harmon v Mervine, appeal numbered 16-463, decided herewith; Real Property Law § 234). The record discloses no manifest unfairness or bad faith by tenant that would justify a denial of tenant's reciprocal right to seek attorney's fees (see Matter of 251 CPW Hous. LLC v Pastreich, 124 AD3d 401, 404 [2015]; Huron Assoc., LLC v 210 E. 86th St. Corp., 18 AD3d 231 [2005]). The court rule (22 NYCRR 208[c]) invoked by Civil Court to bar tenant's counterclaim for attorney's fees finds no application in the case at bar (see Greenburger v Diether, 10 Misc 3d 21 [2005]). We have examined landlords' remaining contentions and find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 08, 2016