167-169 Allen St. HDFC v Franklin

[*1] 167-169 Allen St. HDFC v Franklin 2010 NY Slip Op 51426(U) [28 Misc 3d 136(A)] Decided on August 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, J.
570337/09

167-169 Allen Street HDFC, Petitioner-Landlord-Appellant,

against

Ken Franklin, Respondent-Tenant-Respondent.

Landlord, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), dated November 14, 2007, which denied its application for entry of a final judgment for attorney's fees in a nonpayment summary proceeding.

Per Curiam.

Order (Jean T. Schneider, J.), dated November 14, 2007, insofar as appealed from, affirmed, with $10 costs.

The award of attorney's fees in favor of the HDFC cooperative landlord was properly embodied in a nonpossessory money judgment, and this even if landlord's submissions were sufficient to demonstrate that such fees were denominated as additional maintenance or rent in the parties' proprietary lease agreement (see Matter of Binghamton Hous. Auth. v Douglas, 217 AD2d 897 [1995]; Port Chester Hous. Auth. v Turner, 189 Misc 2d 603 [2001]). Landlord's argument notwithstanding, the definitional term "rent" set forth in the applicable Federal public housing statute - "the charges under the occupancy agreements between ... members [of a cooperative] and the cooperative" (42 USC § 1437f[f][2]) — cannot be read so broadly as to encompass a nonrent item of inchoate amount such as attorney's fees. In any event, landlord effectively waived any entitlement it may have had to recover attorney's fees in the form of a possessory judgment when it stipulated to settle its underlying maintenance claims upon the entry of a final judgment against tenant, without expressly reserving its rights, if any, to enforce its contemplated claim for attorney's fees via a second possessory judgment (see
generally Amalgamated Dwellings, Inc. v Blutreich, 69 AD3d 486 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: August 13, 2010