Bellstell 7 Park Ave. LLC v Seven Park Ave. Corp.
Annotate this CaseDecided on September 11, 2020
Supreme Court, New York County
Bellstell 7 Park Avenue LLC, Plaintiff,
against
The Seven Park Avenue Corp., Defendant.
157228/2017
Rose & Rose, New York, NY (James E. Bayley of counsel), for plaintiff.
Boyd Richards Parker & Colonnelli, PL, New York, NY (Bryan Mazzola of counsel), for defendant.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 92, 93, 94, 95, 96, 97, 98, 99, 100 were read on this motion for ATTORNEY FEES.
In this action arising from a dispute over the legal status of shares in a Manhattan cooperative apartment building, this court previously issued a declaration that one of the apartments that plaintiff owns in the building retains its "unsold share" status for purposes of the co-op offering plan and proprietary lease. (See Bellstell 7 Park Ave. LLC v. Seven Park Ave. Corp., 66 Misc 3d 710 [Sup Ct, NY County 2019].) Plaintiff now moves for attorney fees under the lease as the prevailing party. The motion is denied.
Section 28 of the proprietary lease provides that "[i]f the Lessee shall at any time be in default hereunder," attorney fees incurred by the lessor "in instituting any action or proceeding based on such default, or defending, or asserting a counterclaim in, any action or proceeding brought by the Lessee," shall be paid by the lessee to the lessor on demand. (NYSCEF No. 45 at 15.) When a residential lease includes such a provision, by statute the lease also impliedly requires the lessor to pay the lessee's reasonable attorney fees "incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease," or incurred "in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease." (Real Property Law (RPL) § 234.)
Plaintiff, relying on these provisions, claims it is entitled to attorney fees incurred in obtaining the declaratory judgment described above. (See NYSCEF No. 76 at 6-8.) This court [*2]disagrees.
Under RPL § 234, a co-op lessee is entitled to attorney fees incurred as a result of the lessor's default under the co-op lease. But plaintiff's complaint did not allege—and plaintiff does not contend now—that defendant lessor breached the lease. To be sure, a live dispute existed between the parties over the proper interpretation of the lease, and thus the scope of plaintiff's rights under the lease with respect to the particular apartment at issue. But plaintiff has never contended that defendant's mere formal statement of the position it intended to take going forward as to that apartment constituted a failure by defendant to perform its obligations under the lease. Indeed, plaintiff brought this declaratory-judgment action precisely to resolve the parties' dispute before defendant could take any action that might abridge plaintiff's rights in breach of the lease. (See generally Compl., NYSCEF No. 2, at 3-8.) Absent an alleged default by defendant under the lease, plaintiff may not obtain fees pursuant to § 28 of the lease and RPL § 234. (See Dupuis v 424 E. 77th Owners Corp., 32 AD3d 720, 722 [1st Dept 2006].)
This court is not persuaded by plaintiff's argument that in litigating this action it was also required to defend itself against claims by defendant that plaintiff defaulted under the lease. To be sure, defendant did argue that plaintiff failed to comply with requirements of the lease. Defendant concededly raised this argument, though, only in affirmative defenses set forth in the answer, not in a claim for relief against plaintiff. (See NYSCEF No. 100 at 2.) And RPL § 234 provides for the award of fees to a tenant only when the fees have been incurred in successfully defending "any action or summary proceeding commenced by the landlord against the tenant"—not in overcoming the landlord's affirmative defenses in an action commenced by the tenant.[FN1]
Plaintiff is not entitled to attorney fees under the lease or RPL § 234. And it does not identify any other basis for an award of fees in "agreement[,] statute or court rule." (Dupuis, 32 AD3d at 722, citing Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1 [1986].)
Accordingly, it is hereby
ORDERED that plaintiff's motion for attorney fees is denied.[FN2]
Dated: September 11, 2020
Hon. Gerald Lebovits
J.S.C. Footnotes
Footnote 1:For similar reasons there is no merit to plaintiff's contention that it is entitled to fees because it was required to litigate defendant's motion in this action that sought summary judgment in defendant's favor on the substance of the interpretive dispute between the parties. (See NYSCEF No. 100 at 2-3.)
Footnote 2:This court therefore does not reach defendant's additional arguments that (i) the fee motion should be held in abeyance pending appeal; and (ii) plaintiff is barred from moving now for fees due to its failure to plead a request for fees in the complaint.
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