Sherwood Suffolk Co. v Panorama Catering, Ltd.

[*1] Sherwood Suffolk Co. v Panorama Catering, Ltd. 2020 NY Slip Op 50745(U) Decided on June 18, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : THOMAS A. ADAMS, P.J., BRUCE E. TOLBERT, TERRY JANE RUDERMAN, JJ
2019-696 S C

Sherwood Suffolk Co., Appellant,

against

Panorama Catering, Ltd., Doing Business as Obsessions, Respondent, and "John Doe," Undertenant.

Alan B. Katz of counsel, for appellant. Panorama Catering, Ltd., d/b/a Obsessions, respondent pro se (no brief filed).

Appeal from an order of the District Court of Suffolk County, Second District (John P. Schettino, J.), dated May 14, 2018. The order, insofar as appealed from and as limited by the brief, denied the branch of landlord's cross motion seeking attorney's fees in a nonpayment summary proceeding.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Landlord commenced this nonpayment proceeding after tenant's "sister" company had paid rent to landlord via a bank check and landlord had rejected the check. Tenant moved to dismiss the proceeding, and landlord cross-moved for summary judgment and for attorney's fees. Before the District Court decided the motions, tenant tendered, and landlord accepted, payment of the arrears. In an order dated May 14, 2018, the District Court granted tenant's motion and denied landlord's cross motion. As limited by its brief, landlord appeals from so much of the order as denied the branch of its cross motion seeking attorney's fees.

Landlord would be entitled to attorney's fees only if it was the prevailing party in this proceeding. As landlord did not obtain a judgment of possession for the rental arrears, it was not the prevailing party (see Nestor v McDowell, 81 NY2d 410 [1993]; Fairview Hous., LLC v Dickens, 39 Misc 3d 146[A], 2013 NY Slip Op 50848[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; Babylon Vil. Equities v Mitchell, 11 Misc 3d 84, 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2006] [the landlord was not entitled to attorney's fees in a nonpayment proceeding where the landlord had accepted the arrears, without prejudice, because the "landlord did not prevail with respect to the central relief sought because there was no possessory judgment which [*2]included arrears in rent"]). Consequently, the branch of landlord's cross motion seeking attorney's fees was properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

ADAMS, P.J., TOLBERT and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 18, 2020