W & HM Realty Partners Co., LLC v Houtenbos

[*1] W & HM Realty Partners Co., LLC v Houtenbos 2017 NY Slip Op 50083(U) Decided on January 24, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.
570579/16

W & HM Realty Partners Co., LLC, Petitioner-Landlord-Respondent,

against

Christiaan Houtenbos, Respondent-Tenant-Appellant, -and- Oriol Elcacho, Davinia Pelegri, "John Doe" and/or "Jane Doe," Respondents-Undertenants.

Tenant, as limited by his briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Maria Milin, J.), dated March 29, 2016, which declined to condition the grant of landlord's motion to discontinue the holdover summary proceeding upon its payment of tenant's attorneys' fees and denied tenant's cross motion for attorneys' fees.

Per Curiam.

Order (Maria Milin, J.), dated March 29, 2016, modified by conditioning the grant of landlord's motion to discontinue the holdover proceeding upon the payment of tenant's attorneys' fees, and remanding the matter for a hearing to determine the reasonable value of attorneys' fees due tenant; as modified, order affirmed, without costs.

In the particular circumstances of this case, where landlord sought to discontinue its possessory claim after 20 months of litigation and completion of discovery, and while tenant's motion for summary judgment of dismissal was pending, we deem it appropriate to condition the discontinuance upon landlord's payment of tenant's costs and reasonable attorneys' fees (see CPLR 3217[b]; Tucker v Tucker, 55 NY2d 378, 383-384 [1982]; Baralan Intl. v Vetrerie Bormioli Ing. Luigi, 215 AD2d 338 [1995]; see also 884 West End LLC v Rosman, 53 Misc 3d 152[A]; 2016 NY Slip Op 51721[U] [App Term, 1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 24, 2017