1974-76 Lafontaine Ave. Terrace Corp. v Rogers

[*1] 1974-76 Lafontaine Ave. Terrace Corp. v Rogers 2010 NY Slip Op 52026(U) [29 Misc 3d 137(A)] Decided on November 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570573/10.

1974-76 Lafontaine Avenue Terrace Corp., Petitioner-Landlord-Appellant,

against

Barbara Rogers, Calendar No. 10-260 Respondent-Tenant-Respondent.

Landlord, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Sheldon J. Halprin, J.), dated September 22, 2009, which, upon reargument, limited landlord's recovery for repair charges and attorneys' fees to the combined amount of $1,949 in a nonpayment summary proceeding.

Per Curiam.

Order (Sheldon J. Halprin, J.), dated September 22, 2009, insofar as appealed from, modified to grant that portion of landlord's motion for an award of attorneys' fees separate and apart from landlord's recovery of repair charges, and the matter remanded to Civil Court for a hearing to determine the amount of reasonable attorneys' fees owed to landlord; as modified, order affirmed, without costs.

Given landlord's recovery of all rent arrears pursuant to the "so-ordered" stipulation of settlement, landlord substantially prevailed on the central issues litigated in this nonpayment summary proceeding and was entitled to an award of attorneys' fees (see Excelsior 57th Corp. v Winters, 227 AD2d 146 [1996]). That award must be separate and apart from landlord's recovery of repair charges. We note that the post-stipulation vacatur of the possessory judgment upon tenant's full payment of longstanding arrears does not alter landlord's status as a prevailing party, since landlord obtained a substantial money judgment without setoff or abatement.

Accordingly, we remand the matter to Civil Court for a hearing to determine the amount of reasonable attorneys' fees owed to landlord.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 24, 2010