4220 BROADWAY ASSOCIATES v. PEREZ (2000)

Supreme Court, Appellate Term, New York.

4220 BROADWAY ASSOCIATES, Appellant, v. Raul PEREZ, Respondent.

Decided: November 30, 2000

Present: WILLIAM P. McCOOE, J.P., WILLIAM J. DAVIS, LUCINDO SUAREZ, Justices.

Borah, Goldstein, Altschuler & Schwartz, P.C., New York City (Paul N. Gruber of counsel), for appellant. Northern Manhattan Improvement Corporation, New York City (Kenneth Rosenfeld and Lourdes R. Mo of counsel), for respondent.

Order entered December 22, 1999 (Larry S. Schachner, J.) affirmed, with $10 costs.

Civil Court properly vacated the final judgment and warrant in this nonpayment proceeding upon tenant's tender of all outstanding arrears (see, Parkchester Apartments Co. v. Scott, 271 A.D.2d 273, 707 N.Y.S.2d 55). Landlord's election to first apply tenant's tender toward the nonpossessory judgment for attorneys' fees, thereby creating a “shortfall” in the amount of tenant's tender, does not dictate a contrary result. This course of action would effectively circumvent our holding in Silber v. Schwartzman, 150 Misc.2d 1, 575 N.Y.S.2d 226 that attorneys' fees do not constitute additional rent in the context of rent regulated tenancies and may not serve as the predicate for an eviction.

PER CURIAM.

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