Riverside Syndicate, Inc. v Richter

[*1] Riverside Syndicate, Inc. v Richter 2010 NY Slip Op 50183(U) [26 Misc 3d 137(A)] Decided on February 4, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 4, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570257/07.

Riverside Syndicate, Inc., Petitioner-Landlord-Respondent,

against

David Richter, Respondent-Tenant-Appellant, -and- Margery Keaton, "John Doe" and "Jane Doe", Respondents-Undertenants.

Tenant appeals from an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), dated September 9, 2008, which denied his motion for attorneys' fees in a holdover summary proceeding.

Per Curiam.

Order (Gerald Lebovits, J.), dated September 9, 2008, reversed, with $10 costs, tenant's motion granted, and matter remanded to the Civil Court for a hearing on the amount of reasonable attorneys' fees owed tenant.

In its notice to cure an illegal sublet (or assignment), petitioner-landlord claimed that tenant violated paragraph 4 of the parties' January 1975 written lease agreement. The cure notice was subsequently incorporated by reference into landlord's petition seeking tenant's eviction based, among other things, on an alleged illegal sublet. Moreover, landlord requested an award of attorneys' fees against tenant in the petition. That proceeding was dismissed by Civil Court, and the court denied tenant's subsequent application for attorneys' fees pursuant to the reciprocal provisions of Real Property Law § 234.

Although neither party produced the written lease agreement, tenant's application for attorneys' fees should have been granted. Landlord made a formal judicial admission (see Mangano v Burke, 14 Misc 3d 126[A] [2006], 2006 NY Slip Op 52392[U]; see also Zegarowicz v Ripatti, 67 AD3d 672 [2009]) that the initial written lease agreement existed between the parties, identifying the date of the lease and referring to a specific clause of the lease. This admission, coupled with landlord's request in the petition for attorneys' fees against tenant, effectively established that a valid lease containing an attorneys' fee provision exists between the parties (see generally East Egg Assoc. v Diraffaele, 158 Misc 2d 364 [1993], affd 160 Misc 2d 667 [1994] cf. Partnership 92 West, L.P. v Woods, 186 Misc 2d 445 [2000]). In this posture, and [*2]considering landlord's failure to produce the initial lease agreement, selected portions of which landlord expressly invoked in fashioning its request for relief in this proceeding, tenant is entitled to attorneys' fees.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 04, 2010