Neighborhood Partnership Hous. Dev. Fund Co., Inc. v Okolie

[*1] Neighborhood Partnership Hous. Dev. Fund Co., Inc. v Okolie 2005 NYSlipOp 51307(U) Decided on August 10, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 10, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-1166 K C

Neighborhood Partnership Housing Development Fund Company, Inc., Appellant-Respondent,

against

Cyril Okolie, Respondent-Appellant, -and- Amigo Company Retail Dry Cleaning, "ABC" CORP., "JOHN DOE" & "JANE DOE", Respondents.

Appeal by landlord and cross appeal by tenant Okolie from an order of the Civil Court, Kings County (K. Rothenberg, J.), dated February 17, 2004, which denied landlord's motion to restore the matter to the calendar for an assessment of attorney's fees and denied tenant's cross motion, inter alia, to restore the matter to the court calendar for a money judgment for rent paid without services.

Appeal by tenant Okolie from an order of the Civil Court, Kings County (K. Rothenberg, J.), dated March 18, 2004, which granted landlord's motion for reargument of the order dated February 17, 2004 and, upon reargument, restored the matter to the calendar for an assessment of reasonable attorney's fees to be awarded landlord.

Appeal by tenant Okolie from an order of the Civil Court, Kings County (K. King, J.), dated August 13, 2004, which denied his motion for dismissal and summary judgment with respect to landlord's claim for attorney's fees.

Appeal by tenant Okolie from so much of an order of the Civil Court, Kings County (K. King, J.), dated August 13, 2004, which granted, in part, landlord's motion to quash a subpoena duces tecum. [*2]

Appeal by landlord from the branch of the order dated February 17, 2004 insofar as it denied landlord's motion to restore the matter to the calendar for an assessment of attorney's fees unanimously dismissed, as said branch of the order was superseded by the order dated March 18, 2004.

Order dated February 17, 2004 insofar as it denied tenant Okolie's cross motion to restore the matter to the trial calendar unanimously affirmed without costs.

Order dated March 18, 2004 unanimously modified by providing that, upon reargument, the original decision of February 17, 2004 is adhered to denying landlord's motion to restore the matter to the calendar for an assessment of attorney's fees; as so modified, affirmed without costs.

Appeals by tenant Okolie from the orders dated August 13, 2004 unanimously dismissed as moot.

The instant post-judgment orders relate primarily to landlord's application to reopen the final judgment for the imposition of attorney's fees. In this regard, the lease provides in paragraph 18 that, upon default, "Lessee shall remain liable for any damages arising from Lessee's default." The lease further provides in paragraph 20, entitled "Additional Rent", that "Any reasonable expenses incurred by the Lessor involving Lessee . . . which result from Lessee's failure to perform any obligations pursuant to this lease, shall be deemed Additional Rent pursuant to this lease." Inasmuch as the lease between the parties does not expressly provide for attorney's fees, it was error for the court, upon reargument, to in effect grant landlord's application and order a hearing for an assessment thereof (see Ponte & Sons v Lorberblatt, NYLJ, Nov. 19, 1992, at 25 [App Term, 1st Dept]). Accordingly, said order is modified by providing that, upon reargument, the court's original determination denying landlord's [*3]
application is adhered to. We note that tenant has raised no issue on appeal with respect to the February 17, 2004 order. In view of the foregoing, the appeals from the remaining orders are disposed of as set forth above.
Decision Date: August 10, 2005