Henry v Simon

[*1] Henry v Simon 2009 NY Slip Op 51369(U) [24 Misc 3d 132(A)] Decided on June 29, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ
2008-813 W C.

Maurice Henry, Appellant,

against

Judy Simon, Respondent.

Appeal from a final judgment of the Justice Court of the Town of Mount Kisco, Westchester County (Mark Farrell, J.), entered October 29, 2007. The final judgment, insofar as appealed from, awarded landlord no attorney's fees in a nonpayment summary proceeding.

Final judgment, insofar as appealed from, affirmed without costs.

On this appeal by landlord on the ground of inadequacy, we find that the Justice Court properly declined to award attorney's fees to landlord in this nonpayment summary proceeding. Since the lease provision relied upon by landlord does not deem attorney's fees additional rent, attorney's fees were not recoverable in this summary proceeding (RPAPL 741 [5]; see e.g. Binghamton Hous. Auth. v Douglas, 217 AD2d 897 [1995]; Acierno v Faldich, 4 Misc 3d 98 [App Term, 9th & 10th Jud Dists 2004]).

Accordingly, the final judgment, insofar as appealed from, is affirmed.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Tanenbaum, J.P., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009