Roc Century Assoc., LLC v Chittampalli

[*1] Roc Century Assoc., LLC v Chittampalli 2014 NY Slip Op 50855(U) Decided on June 4, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570068/11

Roc Century Associates, LLC, Petitioner-Landlord-Appellant, -

against

Seshachar Narayanan Chittampalli, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Timmie Erin Elsner, J.), dated November 12, 2013, which denied its posttrial motion for an award of attorney's fees in a nonpayment summary proceeding.

Per Curiam.

Appeal from order (Timmie Erin Elsner, J.), dated November 12, 2013, dismissed, without costs.

Landlord's appeal from the order denying its posttrial application for attorney's fees must be dismissed, in view of its failure to include in the record on appeal a transcript of the trial of the underlying nonpayment summary proceeding. The issue framed by plaintiff on appeal — concerning its attainment of "prevailing party" status in prosecuting its rent claim — does not merely concern "rulings on questions of law" (CPLR 5525[b]). Rather, the proper resolution of that issue entails a fact-sensitive inquiry requiring "consideration of the true scope of the dispute litigated, followed by a comparison of what was achieved within that scope" (Excelsior 57th Corp. v Winters, 227 AD2d 146, 147 [1996]). In order to undertake such an inquiry we must review the trial transcript, including the reason(s) "set forth on the record" by the trial court in awarding tenant a rent abatement on her breach of warranty of habitability counterclaim and calculating the amount of the net monetary recovery awarded to landlord. The thumbnail summary of the trial proceedings offered by landlord in its appellate brief is not a permissible substitute for a properly settled trial transcript. Landlord, as the appellant, "submitted this appeal on an incomplete record and must suffer the consequences" (Polyfusion Elecs., Inc. v AirSep Corp., 30 AD3d 984, 985 [2006], quoting Matter of Santoshia L., 202 AD2d 1027, 1028 [1994]; see also Gerhardt v New York City Tr. Auth., 8 AD3d 427 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 04, 2014