Galicia v Rota Holding Corp. #2

Galicia v Rota Holding Corp. #2 2008 NY Slip Op 09717 [57 AD3d 293] December 11, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Luis F. Galicia, Appellant,
v
Rota Holding Corp. #2, Respondent.

—[*1] Barton Barton & Plotkin, LLP, New York (Randall L. Rasey of counsel), for appellant.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered April 16, 2007, which, to the extent appealed from, denied plaintiff's request for attorney fees and costs under Real Property Law § 234, unanimously reversed, on the law, with costs, the request for attorney fees granted, and the matter remanded for further proceedings.

Not only does the lease in question expressly provide for reciprocal attorney fees, but section 234 provides that any residential lease entitling a landlord to seek attorney fees implies a reciprocal covenant requiring the landlord to compensate a successful tenant for such fees and expenses (see Cier Indus. Co. v Hessen, 136 AD2d 145, 150 [1988]). The statute thus applies to the substantial attorney fees incurred in this case because defendant landlord would have been entitled to such fees had it been successful in a similar action against plaintiff tenant for breach of the lease. Moreover, section 234 is applicable to court proceedings in which a party to an administrative proceeding before the Division of Housing and Community Renewal seeks to enforce, modify or vacate that agency's determinations, as in the proceedings herein (see Chechak v Hakim, 269 AD2d 333 [2000]). Plaintiff has not waived his right to these fees (see Dowling v Yamashiro, 116 Misc 2d 86, 89 [1982]), and an avenue for this relief would even be available in a plenary action (see Calce v Futterman, 235 AD2d 343 [1997]). Concur—Andrias, J.P., Saxe, Sweeny, Catterson and Moskowitz, JJ. [See 2007 NY Slip Op 30725(U).]