Grossman v Homenny

[*1] Grossman v Homenny 2009 NY Slip Op 50365(U) [22 Misc 3d 139(A)] Decided on March 5, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570691/08.

Anita S. Grossman, Mitchell M. Grossman and Philip Grossman, Petitioners-Landlords- Respondents,

against

George Homenny and Ann Homenny, Respondents-Tenants-Appellants.

Tenants appeal from an order of the Civil Court of the City of New York, New York County (Marcia J. Sikowitz, J.), dated August l8, 2008, which denied their motion for attorneys' fees in a holdover summary proceeding.

Per Curiam.

Order (Marcia J. Sikowitz, J.), dated August 18, 2008, reversed, with $10 costs, tenants' motion for attorneys' fees granted and matter remanded for a determination of the amount of reasonable attorneys' fees due tenants.

The February 2005 holdover "summary" proceeding underlying the tenants' claims for attorneys' fees was marked off calendar in April 2005, and eventually dismissed by court order issued on February 20, 2007, denying landlords' belated restoral motion. The dismissal order was affirmed by this Court on a prior appeal, based upon the landlords' failure "to demonstrate a meritorious claim, a reasonable excuse for the delay, a lack of intent to abandon the proceeding and an absence of prejudice to the elderly tenants" (Grossman v Homenny, 17 Misc 3d 128[A], 2007 NY Slip Op 51908[U] [2007]). In this posture, the "ultimate outcome" of the possessory proceeding was reached in favor of the tenants, "whether or not such outcome [was] on the merits" (Centennial Restorations Co. v Wyatt, 248 AD2d 193, 197 [1998], quoting Elkins v Cinera Realty, 61 AD2d 828 [1978]). Tenants thus achieved prevailing party status in defending the proceeding, and are entitled to attorneys' fees pursuant to the parties' initial lease agreement and the reciprocal provisions of Real Property Law § 234. Contrary to the view expressed below, the record does not disclose any "equitable considerations" warranting the denial of tenants' application for attorneys' fees.
"[T]he fact that [landlords'] position in this litigation has not been frivolous does not render it manifestly unfair to enforce the [tenants' reciprocal right to] attorney's
fees..." (Huron Assoc. LLC v 210 E. 86th St. Corp., 18 AD3d 231 [2005]). [*2]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 05, 2009