ATM Four LLC v Demezier

[*1] ATM Four LLC v Demezier 2009 NY Slip Op 50406(U) [22 Misc 3d 1132(A)] Decided on March 6, 2009 District Court Of Nassau County, First District Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2009
District Court of Nassau County, First District

ATM Four LLC, Petitioner,

against

Rosemarie Demezier, Respondent.



SP 6031/08



Melissa R.C. Vasconcelos, Esq. WOLFSON & GROSSMAN LLP

1600 Stewart Avenue, Suite 603

Westbury, NY 11590

Attorney for Petitioner

Reena Gulati, Esq.

3000 Marcus Avenue, Suite 1E5

Lake Success, NY 11042

Attorney for Respondent

Scott Fairgrieve, J.

This non-payment summary proceeding was instituted against Respondent Rosemarie Demezier on or about October 30, 2008. In its petition, Petitioner ATM Four, LLC sought a judgment of possession and claimed rent owed in the amount of $2,505.00, which represented rental arrears and late fees in the amount of $2,055.00 and $450.00 in attorney's fees. On November 17, 2008, both parties appeared in court and after unsuccessful attempts to negotiate a settlement, the case was set for trial on December 17, 2008.

Prior to trial, on or around December 13, 2008, the Respondent paid the Petitioner all rental arrears and late fees, but did not pay the amount demanded in the petition for attorney's fees.

Thereafter, on January 14, 2009, Petitioner filed this motion seeking attorney's fees in the amount of $450.00. Respondent opposes the motion on the grounds that 1) this Court lacks subject matter jurisdiction to grant the requested relief, and 2) the Petitioner did not prevail in the instant summary proceeding.

SUBJECT MATTER JURISDICTION

The landlord-tenant court is a court of limited jurisdiction and may therefore grant only limited relief, including a judgment of possession of the subject premises, and/or "a judgment for rent due, and for a period of occupancy during which no rent is due, for the fair value of use and occupancy of the premises if the notice of petition contains a notice that a demand for such a judgment has been made" (RPAPL §741).

"The term rent' will not be deemed to include any other payments which the tenant has covenanted to make, unless the parties expressly provide that such other payments shall constitute rent... In such proceedings, the definition of rent or additional rent must be strictly construed inasmuch as the very jurisdiction of the court is at issue" (Noyes Co. Inc. v. Standard Industries, Inc., 84 Misc 2d 292, 374 NYS2d 987 [Civ Ct, NY County 1975] (emphasis added), aff'd 85 Misc 2d 853, 381 NYS2d 185 [App Term 1st Dep't 1976]). [*2]

Therefore, attorney's fees may only be awarded to the prevailing party in a summary proceeding if "the lease provides for recovery of such fees as additional rent" (Fragiacomo v. Pugliese, 11 Misc 3d 96, 816 NYS2d 826 [App Term 2nd Dep't 2006]; see also Matter of Bedford Gardens Co. v. Silberstein et al, 269 AD2d 445, 702 NYS2d 884 [App Div 2nd Dep't 2000]; Peekskill Housing Authority v. Quaintance, 20 Misc 3d 57, 864 NYS2d 668 [App Term 2nd Dep't 2008]; Maplewood Mgmt v. Jackson et al, 113 Misc 2d 142, 448 NYS2d 966 [Dist Ct Nassau County 1982]; William Manor Mgmt Assoc. v. Deutsch et al, 126 Misc 2d 1006, 481 NYS2d 937 [City Ct of Mt Vernon, Westchester County 1984]).

Here, the lease provides: "The successful party in a legal action or proceeding between Landlord and Tenant for non-payment of rent or recovery of possession of the Apartment may recover reasonable legal fees and costs from the other party." Respondent argues that this alone is not sufficient to establish subject matter jurisdiction because there is no express provision that attorney's fees shall be deemed additional rent. However, Respondent overlooked the footnote at the bottom of the lease agreement, which reads: "Legal fees shall be considered additional rent."

Since the lease provides that attorney's fees shall constitute additional rent, this Court has subject matter jurisdiction over Petitioner's claim.

PREVAILING PARTY

Respondent further contends that Petitioner did not prevail in the instant summary proceeding, and as such, Petitioner may not recover attorney's fees.

To be considered the "prevailing party," a party must be successful "with respect to the central relief sought" (Nestor v. McDowell, 81 NY2d 410, 416, 615 NE2d 991 [1993]; see also Village of Hempstead,8 AD2d 476, 778 NYS2d 519 [App Div 2nd Dep't 2004]; 409 Owners Corp v. Israel, 189 Misc 2d 34, 729 NYS2d 819 [App Term 2nd Dep't 2001]; Fatsis v. 360 Clinton Ave Tenants Corp, 272 AD2d 571, 709 NYS2d 421 [App Div 2nd Dep't 2000]; Babylon Village Equities v. Mitchell, 11 Misc 3d 84, 816 NYS2d 279 [App Term 2nd Dep't 2006]; Jocar Realty co v. Galas, 176 Misc 2d 534, 673 NYS2d 836 [Civ Ct, NY County 1998]).

The instant nonpayment summary proceeding was instituted by Petitioner to recover rental arrears and a judgment of possession. But Petitioner claims that insofar as it obtained the back rent it was due, it was the prevailing party in this action.

However, in Nestor (supra ), the "central relief" for a nonpayment summary proceeding was deemed to be a judgment of possession (81 NY2d at 416). In Babylon Village (supra ), the central relief for a nonpayment summary proceeding was more narrowly defined as a judgment of possession and money judgment for rental arrears (11 Misc 3d at 85).As Respondent never vacated the subject premises, and Petitioner was [*3]never awarded the actual relief sought, Petitioner does not meet the criteria set forth in Nestor and Babylon Village. Therefore, Petitioner is not entitled to an award for attorney's fees.

The Petitioner urges this Court to employ the reasoning applied in Acierno, wherein this Court held that "it stretches credulity to argue that the plaintiff was not successful" where there was "no trial at all, the defendant/respondent presented no defenses or counterclaims, and the parties merely stipulated to an eviction within a time frame that corresponded roughly to what the plaintiff/petitioner could have expected from a litigated conclusion of the matter" (Acierno v. Faldich, 193 Misc 2d 144, 748 NYS2d 470 [Nassau County Dist Ct 2002]).

However, this Court has already distinguished Acierno, in which the tenant vacated the subject premises, from a nonpayment summary proceeding in which the tenant did not vacate, but instead voluntarily paid the rental arrears due prior to trial. (See Clinton Realty LLC v. Tarra, 15 Misc 3d 1118(A), 2007 WL 1080586 [Nassau County Dist Ct 2007]).

This Court reiterates its sentiment, as set forth in Clinton, that "it seems to be of unsound policy to deny a petitioner attorney's fees in this situation" (Clinton, 2007 WL 1080586 at *2). To allow the tenant to pay her rent late without penalty, and to instead penalize the landlord by denying him reimbursement for his attorney's services, does not sit well with the Court.Therefore, this Court urges that this matter be appealed.

As Petitioner was not the prevailing party as required by appellate case law, Petitioner's motion for attorney's fees is denied.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated: March 6, 2009

SF/kgv

CC: [*4]

Melissa R.C. Vasconcelos, Esq.

WOLFSON & GROSSMAN LLP

1600 Stewart Avenue, Suite 603

Westbury, NY 11590

Attorney for Petitioner

Reena Gulati, Esq.

3000 Marcus Avenue, Suite 1E5

Lake Success, NY 11042

Attorney for Respondent