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Civil Court, City of New York.

BEDFORD OAK, LLC, Petitioner, v. Carlos HERNANDEZ, Brenda Hernandez, Respondent.


Decided: January 18, 2020

Petitioner was represented by: Frank J. Loverro, Esq. Respondent was represented by: Singh & Rani, LLP, Bikram Singh, Esq.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of motion and affidavits annexed 1

Order to Show Cause and affidavits annexed

Answering affidavits 2

Replying affidavits




The within holdover proceeding is before this Court, again, this time on respondents' motion for attorney fees. Respondents allege that they are the prevailing party and thus, under RPL 234 respondents claim they are entitled to an award of legal fees as petitioner's summary holdover proceeding was dismissed, on respondents' motion for such relief, by this Court's prior order of March 14, 2019. The Court notes that respondents' motion was brought within only two months of the Court's decision dismissing the proceeding, and that the decision required petitioner to offer respondents a renewal lease.

That there exists a reciprocal right to attorney fees under RPL 234 is not at issue, see N.V. Madison, Inc. v. Saurwein, 103 Misc 2d 996, 431 N.Y.S.2d 251, AT 1st Dept, 1980, (when a lease provides that the landlord may recover attorney's fees in a summary proceeding there is implied in such lease a corresponding obligation of the landlord to pay the tenant's legal expenses incurred in the successful defense of any summary proceeding commenced by the landlord against the tenant arising out of the lease). The question is, have the respondents successfully defended against the underlying action, and is that action no longer viable to be brought in a plenary proceeding. The Appellate Term in the 1st Dept. has answered that attorney fees should not be awarded to a respondent unless the underlying action is no longer viable or has been abandoned by the petitioner.

In N. V. Madison, supra, the Court stated: “The instant summary proceeding here was disposed of without prejudice, on procedural grounds, unrelated to the merits of the landlord's claim. Under those circumstances, the question arises whether there has been a 'successful defense of any *** summary proceeding commenced by the landlord against the tenant' a prerequisite to tenant's recovery of legal fees under section 234 of the Real Property Law. ․ In interpreting section 234, the appellate court said, ‘it is clear that the Legislature intended such an award to be based on the ultimate outcome of the controversy, whether or not such outcome is on the merits’. The court then said: ‘If the landlord is ultimately successful in recovering the rent due under the lease [i.e., in the third proceeding that had been started], it would be unjust to allow the plaintiff tenant to recover his reasonable attorney's fees based on the outcome of each separate stage of what is clearly one controversy’ ” (citing Elkins v. Cinera Realty, 61 AD2d 828,402 NYS2d 432, AD 2nd Dept, 1978 (emphasis added). Further, and more recently, the Appellate Term, in upholding an attorney fee decision issued by Hon. J. Schneider in 130 St. Marks Place LLC, v. Hines, 54 Misc 3d 143(A), AT 1st Dept, 2017, stated: “In the particular circumstances at issue, where nearly one year has passed since the discontinuance of the holdover proceeding and no new proceeding was commenced by petitioner to determine the merits of its possessory claim, the only reasonable conclusion is that petitioner abandoned the matter and no longer contemplates suit on the underlying merits of that claim. In this context, respondent is entitled to his reasonable attorneys' fees, since petitioner should not be permitted to postpone indefinitely the ‘ultimate outcome’ of the lawsuit, effectively denying respondent attorneys' fees." (Citations omitted).

Here, unlike in Hines, supra, it was only two months after the Court's order dismissing the proceeding that respondents moved for an award of attorneys fees. But, since the petitioner was ordered to offer respondents a renewal lease, and could not recommence the underlying proceeding until the “window period" of said renewal lease had arrived (which could as much as two years in the future), petitioner cannot be determined to have abandoned the underlying proceeding, nor can it be deemed as no longer viable, thus respondents request for attorneys fees is not yet ripe for adjudication. Accordingly, respondents motion is denied without prejudice to renewal when the time is ripe for such a motion.

This is the decision and order of the Court. Copies are being mailed to both sides.

Steven Weissman, J.

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Docket No: 034681/18

Decided: January 18, 2020

Court: Civil Court, City of New York.

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