67-15 102nd St., L.L.C. v Whitman-Gross

[*1] 67-15 102nd St., L.L.C. v Whitman-Gross 2014 NY Slip Op 50659(U) Decided on April 14, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 14, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and WESTON, JJ
2012-365 Q C.

67-15 102nd Street, L.L.C., Respondent,

against

Eva Whitman-Gross, Tenant-Appellant, MARK HAIMSON, Undertenant-Appellant, -and- "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), dated February 15, 2011, deemed from a judgment of the same court entered February 15, 2011 (see CPLR 5512 [a]). The judgment, entered pursuant to the order dated February 15, 2011 granting landlord's motion for an award of attorney's fees, awarded landlord attorney's fees in the principal sum of $9,175 as against tenant Eva Whitman-Gross and undertenant Mark Haimson.

ORDERED that the judgment is modified by striking the award of attorney's fees as against undertenant Mark Haimson, and so much of the order dated February 15, 2011 as granted the branch of landlord's motion seeking attorney's fees against Mark Haimson is vacated and that branch of the motion is denied; as so modified, the judgment is affirmed, without costs.

In April 2009, landlord commenced this holdover summary proceeding after serving tenant Eva Whitman-Gross with a notice to cure, which alleged that Whitman-Gross had violated the lease agreement by subletting the subject rent-stabilized apartment, or by assigning the lease thereto, to undertenant Mark Haimson, her son-in-law. Following a nonjury trial, at which Whitman-Gross did not appear but was represented by her attorney, a final judgment of possession was entered in landlord's favor on May 27, 2010. In its decision after trial, the Civil Court found that landlord had established its prima facie case; that "[i]t is conceded that the prime tenant is residing in Florida and that Mr. Haimson has possession of the apartment"; and that Haimson had no succession rights. No appeal was taken from the final judgment.

In July 2010, landlord moved to restore the proceeding to the calendar and for an order awarding it attorney's fees. By order dated December 21, 2010, the court granted so much of the [*2]motion as sought to restore the proceeding to the calendar, and set the matter down for a hearing. Following the hearing, by order dated February 15, 2011, the court awarded landlord attorney's fees against both Whitman-Gross and Haimson. On the same day, a judgment was entered awarding landlord the principal sum of $9,175.

Generally, attorney's fees can be recovered by a prevailing party only if such recovery is authorized by an agreement between the parties or by statute or court rule (see Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]). Here, landlord predicates its right to recover attorney's fees upon paragraph 17 of the lease agreement, which provides that if landlord is compelled to incur any expense, including reasonable attorney's fees, in instituting, prosecuting, and/or defending any action or proceeding instituted by reason of any default of the tenant in performing a covenant of the lease, such expense shall be due from tenant to landlord as additional rent. Since Whitman-Gross never appealed the final judgment, she cannot now controvert the Civil Court's determination that she did not surrender the apartment but instead either sublet the apartment or assigned the lease to Mark Haimson. Consequently, Whitman-Gross is obligated to pay attorney's fees pursuant to paragraph 17 of the lease. Landlord, however, is not entitled to recover attorney's fees from Haimson since he was not a tenant—inasmuch as he was not a signatory to the lease—and had no other contractual or statutory obligation to pay attorney's fees to landlord (cf. Festa v Leshen, 145 AD2d 49 [1989]).

Accordingly, the judgment is modified by striking the award of attorney's fees as against undertenant Mark Haimson, and so much of the order dated February 15, 2011 as granted the branch of landlord's motion seeking attorney's fees against Mark Haimson is vacated and that branch of the motion is denied.

Aliotta, J.P., Pesce and Weston, JJ., concur.
Decision Date: April 14, 2014