Oxford Towers Co., LLC v Wagner

[*1] Oxford Towers Co., LLC v Wagner 2007 NY Slip Op 52655(U) [25 Misc 3d 1224(A)] Decided on June 8, 2007 Supreme Court, New York County DeGrasse, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2007
Supreme Court, New York County

Oxford Towers Co., LLC, Plaintiff,

against

Claudia Wagner and Don Lebowitz, Defendants.



107373/06



Susan Stanley, Esq., Thomas S. Fleishell & Associates, for Appellant

David Ratner, Hartman, Ule, Rose & Ratner, LLP, for Respondent

Leland G. DeGrasse, J.

Defendants move and plaintiff cross-moves for leave to reargue defendants' motion for an order dismissing the complaint and plaintiff's cross motion for summary judgment. The relief prayed for in the complaint is a judgment declaring void and rescinding a September 20, 1995 agreement between plaintiff as the landlord and defendants as tenants. The agreement provides for successive renewals of the parties' lease at prescribed rent increases in the event of the destabilization of defendants' apartment. As set forth in this court's underlying decision, the causes of action for declaratory relief and a rescission are time-barred. Moreover, the fourth and fifth causes of action for use and occupancy and attorneys' fees respectively are not viable inasmuch as they are dependent upon the first, second and third causes of action.

This court also denied defendants' motion for reasonable attorneys' fees. The fee application was based on the reciprocity provisions of Real Property Law § 234. Defendants rely upon section 23 (D) (3) of a lease dated April 5, 2000. That section provides for the payment of the landlord's expenses including attorneys' fees in the event of the lease's cancellation or an eviction. The statute sets forth an implied covenant that reciprocal attorneys' fees may be recovered by the tenant "in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant." Defendants cannot recover attorneys' fees in this action because there is no counterclaim before the court. Moreover, the statute applies to "the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease." The subject of this lawsuit is the 1995 agreement, not the lease. Defendants erroneously argue that "this was an action to cancel the lease." On the contrary, the relief plaintiff sought was a judgment voiding the 1995 agreement [*2]and declaring that it did not obligate plaintiff to offer defendants a renewal lease. In fact, the survivorship provision set forth above the lease's signature lines demonstrates the parties' intent to treat the instruments separately. Defendants also contend that plaintiff admitted that attorneys' fees are recoverable by praying for same in the complaint. "Admissions by a party of any fact material to the issue are always competent evidence against him [emphasis added]" (People v Chico, 90 NY2d 585, 589 [1997]). There is no factual dispute as to the existence of the lease and its attorneys' fees provision. Therefore, the complaint does not constitute an admission of fact because the recoverability of attorneys' fees by either party is a purely legal issue.

For the foregoing reasons, the motion and cross motion for leave to reargue are granted. Upon such reargument, defendants' motion to dismiss the complaint is granted to the extent that the court finds that the first, second and third causes of action are time-barred. The court further finds that viable claims are not stated under the remaining causes of action. It is adjudged and declared that plaintiff's first, second and third causes of action for a judgment voiding the parties' September 21, 1995 agreement are barred by the statute of limitations. The fourth and fifth causes of action are dismissed. Plaintiffs cross motion for summary judgment is denied. Settle judgment and order.

Dated: June 8, 2007

HON. LELAND DeGRASSE J. S. C.