Rossman v Windermere Owners LLC

Rossman v Windermere Owners LLC 2013 NY Slip Op 07278 Decided on November 7, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 7, 2013
Mazzarelli, J.P., Acosta, Saxe, Richter, Feinman, JJ.
10984N 108350/11

[*1]Arnold Rossman, Plaintiff-Appellant,

v

Windermere Owners LLC, et al., Defendants-Respondents.




Marc Bogatin, New York, for appellant.
Cullen & Troia, P.C., New York (Wayne L. DeSimone of
counsel), for respondents.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 20, 2013, which denied plaintiff's motion to dismiss defendants' counterclaim for attorneys' fees, unanimously reversed, on the law, with costs, and the motion granted.

"Under the general rule, attorneys' fees and disbursements are incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties or by statute or court rule" (Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]). Here, the lease agreement between the parties provided for reimbursement of legal fees and costs of the prevailing party in an action or proceeding between the landlord and tenant for non-payment of rent or recovery of possession of the apartment. A lease rider made the tenant liable for the landlord's actual attorneys' fees, costs and disbursements in an action brought by the landlord, arising from the tenant's breach of the lease.

Neither of these provisions applies to the instant action. The lease rider is inapplicable because this action was not initiated by the landlord. The lease provision also does not apply because plaintiff tenant was seeking monetary damages for alleged rent overcharges, a declaratory judgment that he was a rent-stabilized tenant entitled to a two-year stabilized lease at a lawful rent, and an injunction enjoining defendants from taking any steps to evict him. [*2]Defendants have not asserted that plaintiff breached the lease agreement or that he was not a lawful resident in possession of the apartment, when the action was commenced. Consequently, neither party was seeking to recover possession of the apartment.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 7, 2013

CLERK