303 E. 37th Sponsors Corp. v Goldstein

[*1] 303 E. 37th Sponsors Corp. v Goldstein 2010 NY Slip Op 51880(U) [29 Misc 3d 131(A)] Decided on November 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570384/10.

303 E. 37th Sponsors Corp., Petitioner-Landlord-Respondent,

against

Gail Goldstein, Respondent-Tenant-Appellant, "John and/or Jane Doe," Respondents-Undertenants.

Tenant appeals from (1) an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), dated November 20, 2009, which denied her motion for attorneys' fees in a holdover summary proceeding; (2) an order (same court and Judge), dated January 7, 2010, which, upon reargument, adhered to the prior determination; and (3) an order (same court and Judge), dated April 26, 2010, which denied her motion to renew.

Per Curiam.

Orders (Gerald Lebovits, J.), dated November 20, 2009, January 7, 2010 and April 26, 2010, affirmed, with one bill of $10 costs.

As Civil Court correctly concluded, the attorneys' fees provision in the subject initial written lease agreement did not trigger the reciprocal right to attorneys' fees pursuant to Real Property Law § 234 (see Oxford Towers Co., LLC v Wagner,58 AD3d 422 [2009]; Madison-68 Corp. v Malpass,65 AD3d 445 [2009]). To the extent Bunny Realty v Miller (180 AD2d 460 [1992]) suggests a contrary conclusion, we decline to apply it.

While a subsequent renewal lease contains provisions that would trigger tenant's reciprocal right pursuant to Real Property Law § 234, those provisions are of no legal effect. Rent Stabilization Code (9 NYCRR) § 2523.5(a) requires any renewal lease to be on the same terms and conditions as the expiring lease. Here, "[t]he counsel fee provision contained in the renewal lease clearly sought to create a new tenancy obligation [, i.e. a broad obligation to reimburse landlord for attorneys' fees,] not expressed in the earlier lease, and thus was contrary to the statutory framework" (East Eleventh St. Assoc. v Breslow, 174 Misc 2d 994, 995 [1997], affd 256 AD2d 110 [1998]).

Civil Court properly rejected tenant's belated claim on her motion to renew that landlord judicially admitted the existence of a lease with an attorneys' fees provision triggering the protections of Real Property Law § 234. This claim is at odds with tenant's earlier position [*2]seeking legal fees pursuant to the written leases submitted by the parties (see Nestor v Britt, 270 AD2d 192 [2000]; Soho Village Realty, Inc. v Gaffney, 188 Misc 2d 261 [2001]), and is, in any event, without merit because landlord's pleadings did not judicially admit the existence of a written lease with an attorneys' fee provision (cf. Riverside Syndicate, Inc. v Richter,26 Misc 3d 137[A], 2010 NY Slip Op 50183[U] [2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 05, 2010