Bender v Niebel
Annotate this CaseDecided on March 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-558 Q C.
Neil Bender and MARIKA BENDER, Plaintiffs-Appellants,
against
Andrea M. Niebel and MARGARET O'HALLORAN, ESQ., Defendants-Respondents. ANDREA M. NIEBEL, Plaintiff-Respondent, NEIL BENDER and MARIKA BENDER a/k/a MARIKA MARKO, Defendants-Appellants.
Appeal from an order of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered October 13, 2004. The order, insofar as appealed from, dismissed the first cause of action for breach of the warranty of habitability set forth in the complaint in Action No. 1 of this consolidated action and permitted plaintiff in Action No. 2 to interpose a claim for attorney's fees.
Order, insofar as appealed from, reversed without costs and motion by Andrea M. Niebel and Margaret O'Halloran denied insofar as it sought leave to Andrea M. Niebel to add a cause of action seeking attorney's fees, and matter remitted to the court below for determination of the remainder of said motion in accordance herewith.
The present action results from the consolidation of an action commenced by plaintiffs [*2]Neil and Marika Bender ("Action No. 1") in Civil Court, Queens County, with a small claims action commenced by Andrea M. Niebel, also in Civil Court, Queens County ("Action No. 2"). Niebel is a defendant in Action No. 1. The Benders, as plaintiffs in Action No. 1, sought damages for breach of the warranty of habitability for alleged dangerous conditions in their apartment, for lead poisoning allegedly sustained by their son, for failure to return the security deposit when plaintiffs vacated the subject premises, and for legal fees. Plaintiff, in Action No. 2, sought to recover for property damage to the premises.
After a protracted and stormy discovery period, Niebel and O'Halloran moved to strike the Benders' answer in Action No. 2 and the Benders' complaint in Action No. 1 for failure to comply with a discovery order of the court. The Benders defaulted in opposing the motion. In response to the motion, the court held a hearing on the record to determine whether sanctions should be imposed. It was noted on the record that the Benders conceded that they could not support a cause of action for lead poisoning and had withdrawn that claim; however, Niebel and O'Halloran contended that the Benders had not provided discovery on their remaining habitability issues. The court ordered both sides to submit post-hearing memoranda addressing all issues remaining for discovery and all claims. Following these submissions, as pertinent to the present appeal, the court vacated the Benders' default, struck their first cause of action for breach of the warranty of habitability and permitted Andrea M. Niebel as plaintiff in Action No. 2 to amend her complaint to add a cause of action for attorney's fees.
The motion pending before the court below was made pursuant to CPLR 3126 and sought sanctions for the Benders' alleged failure to comply with discovery demands. However, the court did not dismiss the Benders' first cause of action (for breach of the warranty of habitability) on that basis. Instead, the court dismissed this claim as sounding in personal injury. This was error. The Benders' bill of particulars upon the warranty of habitability claim contains, along with lead poisoning allegations that were withdrawn on the record at the June 7, 2005 hearing on the discovery motion, items including insufficient heat and hot water, leaks, inoperative stove, dangerous condition of the steps, defendants' cigarette smoke, which plaintiffs claimed was entering their apartment, and the presence of trash and garbage, none of which are related to lead poisoning or personal injury in any way. Particularly in the current posture of this action, which has been consolidated for trial and which also involves a claim for property damage by Niebel and O'Halloran, the former landlords, a claim for damages for breach of the warranty of habitability may be entertained and, should the Benders be able to prove any such claims, the trier of fact is of course entitled to make a proper award upon them (see Real Property Law § 235-b [3]; see generally Park West Mgt. Corp. v Mitchell, 62 AD2d 291 [1978], affd 47 NY2d 316 [1979]). Therefore, the portion of the order of the court below that dismissed the Benders' warranty of habitability claim is reversed, and the matter is remitted to the court below for determination of the branch of the motion made pursuant to CPLR 3126.
Assuming arguendo that there was a proper motion before the court to permit Niebel to amend her complaint in Action No. 2 to include a cause of action for attorney's fees based upon paragraph 9 of the lease, it was error to do so. Paragraph 9 of the lease, entitled "liability," provides as follows:
"Landlord is not liable for loss, expense, or damage to any person or [*3]property, unless due to Landlord's negligence. Tenant must pay for damages suffered and money spent by landlord relating to any claim arising from any act or neglect of Tenant. Tenant is responsible for all acts of Tenant's family, employees, guests or invitees."
This is an indemnification provision, not one providing for attorney's fees in the present circumstances, and does not even make reference to such fees. Moreover, the only other reference in the lease to recovery of attorney's fees, found at paragraph 15 (D), includes such fees only as an incident of the "cost of re-renting" as defined in the lease,
and likewise will not support an award of fees to either side in the present dispute (see e.g. Kluger v Grube, 2002 NY Slip Op 40480[U] [App Term, 9th & 10th Jud Dists]).
Attorney's fees to a prevailing party are recoverable only by agreement of the parties, by statute, or by court rule, and the lease provisions at issue do not constitute such an agreement (see e.g. Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]; Brown v Badem Bldgs., 111 AD2d 103 [1985]).
Real Property Law § 234 provides that: "Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys' fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys' fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease. . .".
In this consolidated action, neither lease provision fulfills the requirements of Real Property Law § 234 so as to imply any reciprocal right to collect attorney's fees to either party. As no entitlement to recover attorney's fees as the prevailing party pursuant to Real Property Law § 234 lies in this matter as a matter of law, to permit amendment of the complaint in Action No. 2 to assert such a claim was error.
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: March 27, 2006
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