174 LLC v Goldstein

[*1] 174 LLC v Goldstein 2014 NY Slip Op 51563(U) Decided on November 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570354/14

174 LLC, Petitioner-Landlord-Respondent,

against

Abraham Goldstein, Respondent-Tenant-Appellant.

Tenant appeals from an order of the Civil Court of the City of New York, Bronx County (Eardell J. Rashford, J.), dated March 26, 2014, which denied his preanswer motion to dismiss the holdover petition and for an award of attorneys' fees.

Per Curiam.

Order (Eardell J. Rashford, J.), dated March 26, 2014, reversed, with $10 costs, motion granted, petition dismissed, and matter remanded to Civil Court to determine the reasonable value of attorneys' fees due tenant.

Landlord's own correspondence of July 8, 2013 - cautioning tenant that "you are harboring a dog . . . a direct violation of your lease" - conclusively establishes landlord's knowledge of the presence of the dog as of that date. Landlord's acknowledged failure to commence an eviction proceeding within three months of that date constituted a waiver of the no-pet provision of the parties' lease agreement (see Administrative Code of City of NY § 27-2009.1[b]; Seward Park Housing Corp. v Cohen, 287 AD2d 157 [2001]). Although tenant's dismissal motion did not identify the particular subdivision of CPLR 3211(a) relied upon, the papers submitted made plain that dismissal was sought on the basis of documentary evidence (CPLR 3211[a][1]; see Schenectady Intl. Inc. v Employers Ins. of Wausau, 245 AD2d 754 [1997]).

Tenant's ultimate success on his Pet Law waiver defense warrants an award of attorneys' fees in his favor pursuant to the governing lease agreement and the reciprocal provisions of Real Property Law § 234 (see 184 West 10th Street Corp. v Marvits, 29 Misc 3d 134[A], 2010 NY Slip Op 51970[U] [App Term, 1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 03, 2014