Fairview Hous., LLC v Dickens

[*1] Fairview Hous., LLC v Dickens 2013 NY Slip Op 50848(U) Decided on May 13, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ
2012-1038 W C.

Fairview Housing, LLC, Respondent,

against

Sallie Dickens, Appellant, -and- "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from a judgment of the Justice Court of the Town of Greenburgh, Westchester County (Doris Friedman, J.), entered December 19, 2011. The judgment awarded landlord attorney's fees in the sum of $2,400 in a nonpayment summary proceeding.

ORDERED that the judgment is reversed, without costs, and landlord's application for attorney's fees is denied.

In this nonpayment proceeding, the petition seeks certain rental arrears plus attorney's fees of $821.25. After tenant had paid the rental arrears, the Justice Court, without holding a trial, awarded landlord attorney's fees in the sum of $2,400. It is unclear from the record whether the $2,400 awarded includes the $821.25 in pre-existing attorney's fees sought in the petition or only the attorney's fees incurred in this proceeding.

It was error for the Justice Court to award landlord attorney's fees, as landlord did not [*2]prevail with respect to the central relief sought of a possessory judgment (see Nestor v McDowell, 81 NY2d 410, 415-416 [1993]; Babylon Vil. Equities v Mitchell, 11 Misc 3d 84 [App Term, 9th & 10th Jud Dists 2006]; see generally Patchogue Assoc. v Sears Roebuck & Co., 37 Misc 3d 1, 2 [App Term, 9th & 10th Jud Dists 2012]). In any event, there is no proof in the record that the lease provides for an award to landlord of attorney's fees as additional rent (see Gray v Hilltop Vil. Coop. # Three, Inc., 50 AD3d 739 [2008]; Evans v Tracy, 34 Misc 3d 152[A], 2012 NY Slip Op 50307[U] [App Term, 9th & 10th Jud Dists 2012]). Nor is there any support in the record for an award of $2,400. We also note that it cannot be determined from the record whether attorney's fees could properly have been deemed additional rent, in view of the fact that this is a federally subsidized tenancy (see Spring Val. Homes Assoc. v Logan, 2003 NY Slip Op 51224[U] [App Term, 9th & 10th Jud Dists 2003]). Accordingly, the judgment is reversed and landlord's application for attorney's fees is denied.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: May 13, 2013