PARTNERSHIP 92 WEST v. WOODS

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Supreme Court, Appellate Term, New York.

PARTNERSHIP 92 WEST, L.P., Appellant, v. Joan A. WOODS, Respondent.

Decided: August 31, 2000

PRESENT:  STANLEY PARNESS, P.J., WILLIAM P. McCOOE and PHYLLIS GANGEL-JACOB, JJ. Lawrence P. Wolf and Livoti, Bernstein & Moraco, P.C., New York City (Robert F. Moraco of counsel), for appellant. Richard A. Altman, New York City, for respondent.

Order dated April 27, 1999 (Carol H. Arber, J.) reversed, with $10 costs, and tenant's application for attorneys' fees is denied.   Appeals from orders dated January 4, 1999 and June 1, 1999 (Carol H. Arber, J.) dismissed, without costs, as academic.

 Tenant's application for attorneys' fees should have been denied since she failed to sustain her burden of proving that a lease was executed containing a provision for the recovery of litigation costs (see Orlowski v. Koroleski, 234 A.D.2d 436, 651 N.Y.S.2d 137).   Neither party has produced the original lease, which apparently dates back over three decades.   There is no factual basis for Civil Court's conclusion that this lease contained an attorneys' fees clause.   Such an obligation should not be imposed by “implication or construction” (see, Ponte & Sons v. Lorberblatt, N.Y.L.J., Nov. 19, 1992, at 25, col. 3 [App. Term, 1st Dept.] ) or, in this case, by mere speculation.   In the absence of a lease agreement providing for landlord's recovery of fees, the reciprocity provisions of Real Property Law § 234 are not triggered (Rivertower Associates v. Chalfen, 167 A.D.2d 309, 562 N.Y.S.2d 54).   Landlord's prayer for relief in the holdover notice of petition, seeking, inter alia, “rent and use and occupancy ․ and legal fees ․”, does not have the force of a judicial admission which would concede the existence of a fees provision.   Unlike East Egg Associates v. Diraffaele, 158 Misc.2d 364, 600 N.Y.S.2d 999, affd. 160 Misc.2d 667, 614 N.Y.S.2d 102) the petition herein did not allege the existence of a rental agreement in which tenant agreed to pay reasonable attorneys' fees incurred by the landlord (see, Fifth Ave. Devel. Co. v. Kerin, N.Y.L.J. March 6, 2000 at 24 col. 5 [App. Term, 1st Dept.] ).

 We have considered tenant's argument that landlord's right to appeal terminated with the subsequent entry of the final judgment and find it lacking in merit (see, CPLR 5501[c];  Siegel, 1997 Supp. Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C5501:10, 2000 Pocket Part, at 2).

PER CURIAM.