Feinman v Fifty-Seven Associates

[*1] Feinman v Fifty-Seven Associates 2010 NY Slip Op 51267(U) [28 Misc 3d 131(A)] Decided on July 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
.

Mitchell D. Feinman, Petitioner-Tenant-Appellant, 570069/09

against

Fifty-Seven Associates, Respondent-Landlord-Respondent, -and- Department of Housing Preservation and Development of the City of New York, Co-Respondent.

Petitioner-tenant appeals from an order of the Civil Court of the City of New York, New York County (Sheldon J. Halprin, J.), entered May 23, 2008, which, inter alia, awarded respondent-landlord attorneys' fees in the amount of $1,200 in a Housing Part enforcement proceeding.

Per Curiam.

Order (Sheldon J. Halprin, J.), entered May 23, 2008, reversed, without costs, and respondent-landlord's motion for an award of attorney's fees is denied.

The attorney's fee provision contained in paragraph 22 of the parties' lease agreement, authorizing landlord's recovery of attorney's fees in the event of a default by tenant under the terms of the lease, was not triggered in the circumstances of this case, which involved no lease violation on tenant's part, but merely tenant's commencement of an (ultimately discontinued) Housing Part (HP) enforcement proceeding (see Hamilton v Menalon Realty, LLC, 14 Misc 3d 13 [2006]; cf. 313 W. 100th St. Tenants Assn. v Kepasi Realty Corp., 143 Misc 2d 566 [1989]). Nor was the award of attorney's fees imposed as a condition of the grant of tenant's motion to discontinue the HP proceeding; rather, landlord sought and was awarded attorney's fees solely on the (erroneous) basis of its claimed contractual entitlement to legal fees pursuant to the lease terms.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: July 19, 2010