ANELLO v. FIEDLER (2021)

ORDERED that the order is affirmed, without costs.

Landlord commenced this owner's use holdover proceeding in September 2017. By order dated February 5, 2018, the Civil Court granted, without prejudice, tenant's motion to dismiss the petition for lack of personal jurisdiction. By order dated July 5, 2019, a second owner's use proceeding, commenced by landlord shortly after the dismissal of this proceeding, was discontinued because landlord was unable at that time to meet the heightened requirements triggered by tenant turning 62 years old over a year after the commencement of that proceeding (see Rent Stabilization Code [9 NYCRR] §§ 2520.6 (p); 2524.4 [a] [2]). Tenant then moved in this proceeding for an award of attorney's fees claiming that he was ultimately the prevailing party in this proceeding by virtue of the discontinuance of the subsequent proceeding and, thus, entitled to attorney's fees pursuant to the parties' lease.

The September 1, 1994 lease that tenant attached to his motion for attorney's fees does not contain an attorney's fee provision. Therefore, tenant failed to demonstrate his prima facie entitlement to recover attorney's fees in this proceeding (see Flemming v Barnwell Nursing Home & Health Facilities, Inc., 15 NY3d 375 [2010]). Consequently, there is no basis to reverse the order and grant tenant's motion. We reach no other issue.

Accordingly, the order is affirmed.

TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.