NSB Abatement Servs., Inc. v Detailing Caf‚, Inc.
Annotate this CaseDecided on May 19, 2005
City Court of Mount Vernon
NSC ABATEMENT SERVICES, INC. AND 34 HAVEN AVENUE REAL ESTATE CORP., Petitioners-Landlords,
against
DETAILING CAFé, INC.; ERWIN RIDGEWAY; GRETA S. MITCHELL; et al, 217 West Third Street a/k/a 160 South Thirteenth Avenue, Front of Building Mount Vernon, New York 10553, Respondents-Tenants,
927-05
Richard F. Komosinski, Esq.
Knuckles & Komosinski, P.C.
Attorney for Petitioners
220 White Plains Road, 6th Floor
Tarrytown, New York 10591
Herbert N. Posner, Esq.
Attorney for Respondents 550 Mamaroneck Avenue, Suite 202
Harrison, New York 10528-1612
Adam Seiden, J.
Petitioners-landlords commenced this holdover proceeding seeking to recover possession of the commercial premises at 217 West Third Street a/k/a 160 South Thirteenth Avenue, Mount Vernon, New York based on a Judgment of Foreclosure on said premises. Respondents-tenants now move to dismiss the proceeding and for an award of attorneys' fees. Petitioners cross-move for an order granting sanctions against respondents for contempt of court.
On this motion, the tenants move to dismiss on the grounds, inter alia, that they received no notice of the foreclosure action, and further, that the purchasers took title subject to the preexisting lease entered between the respondents and the former owners.
In response to the motion, Petitioners now elect to withdraw the current holdover proceeding, oppose an award of attorneys fees to respondents, and seek an award of sanctions against respondents for contempt of court.
Based on the petitioners' election to withdraw the proceeding, the holdover petition is hereby dismissed.
In support of an award of attorneys fees, respondents argue that they are entitled to attorneys fees as the petitioners sought legal fees in their demand for relief and were unsuccessful in this holdover proceeding. Respondents contend that if the petitioners can seek legal fees if they are successful in the prosecution of their action, then respondents are entitled to receive attorneys fees if they are successful in defeating this action.
In opposing an award of attorneys fees, petitioners argue that attorneys fees may not be recovered by the prevailing party unless authorized by agreement or [*2]statute. Petitioners contend that Paragraph 19 of the subject lease allows only the landlord the right to receive attorneys fees, and further that the implied reciprocal covenant for recovery of attorneys fees afforded to residential tenants under RPL § 234 is not afforded to commercial tenants. The Court agrees.
Respondents application for attorneys fees is denied. A review of Paragraph 19 of the commercial lease reveals an allowance for the recovery of attorneys fees for the landlord; there is no such clause in favor of the tenants. In a commercial lease situation, a reciprocal requirement for attorneys fees will not be implied for the benefit of the tenants which is done in a residential lease situation, as commercial tenants are generally presumed to hold equal bargaining power with that of their landlord during the course of the lease negotiation process (Estevez v Tavares, 30 HCR 33A, NYLJ 1/9/02 P. 22 c. 6 (Dist. Ct. Nassau); see also Landlord and Tenant Practice in New York, Volume G § 15:643; Gracie Tower Realty Associates v Danos Floral Co., 142 Misc 2d 920 ( Civ. Ct. New York 1989)).
In light of petitioners' withdrawal of the holdover petition and the defenses raised by respondents, petitioner's application for an award of sanctions against respondents is denied. With respect to unpaid rent, petitioners are free to commence a nonpayment proceeding.
Petition dismissed. Respondents application for attorneys fees is denied. Petitioners application for sanctions against respondents is denied.
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion: Notice of Motion, dated May 4, 2005; Affidavit in Support; Affirmation in Support; Exhibit. Notice of Cross-Motion, dated May 11, 2005; Affirmation in Partial Opposition; Exhibit A-C. Reply Affirmation to Cross-Motion, dated May 16, 2005.
Dated:May 19, 2005
Mount Vernon, New York
___________________________________
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
[*3]
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