PELLI v. CONNORS (2004)

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or about May 23, 2003, which, to the extent appealed from as limited by the briefs, granted that portion of defendants' cross motion seeking to dismiss the complaint and held no party entitled to recover attorney fees, unanimously affirmed, with costs.

Plaintiff owner sought and was granted access to defendants' loft for the purpose of making repairs, thus resolving the controversy between the parties.   The history of this case includes applications before the Loft Board and the Board of Standards and Appeals, and two prior appeals (Pelli v. New York City Loft Board, 5 A.D.3d 268, 774 N.Y.S.2d 492;  Byrne v. Board of Stds. and Appeals of City of N.Y., 5 A.D.3d 261, 774 N.Y.S.2d 493).   The mixed outcome of the litigation was not substantially favorable to either party, so plaintiff should not be entitled to the status of a prevailing party, for the purpose of recovering an attorney fee (see Walentas v. Johnes, 257 A.D.2d 352, 354, 683 N.Y.S.2d 56, lv. dismissed 93 N.Y.2d 958, 694 N.Y.S.2d 635, 716 N.E.2d 700).