TOLEDO MUTUAL HOUSING CORP v. John Doe and Jane Doe, Undertenants.

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Supreme Court, Appellate Term,

TOLEDO MUTUAL HOUSING CORP., Respondent–Appellant, v. Norma SCHWARTZ and Marc Schwartz, Appellants–Respondents, John Doe and Jane Doe, Undertenants.

Decided: October 14, 2011

Present:  STEINHARDT, J.P., PESCE and WESTON, JJ. Holihan & Associates, P.C., Richmond Hill (Stephen Holihan of counsel), for respondent. Vernon & Ginsburg, LLP, New York City (Yoram Silagy of counsel), for appellant.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), entered March 17, 2010.   The order, insofar as appealed from by tenant Norma Schwartz and undertenant Marc Schwartz, denied the branch of their motion seeking an award of attorney's fees in a holdover summary proceeding. The order, insofar as cross-appealed from by landlord, granted the branch of the motion by tenant Norma Schwartz and undertenant Marc Schwartz seeking to dismiss the petition.

ORDERED that the order is affirmed, without costs.

In this holdover proceeding predicated on a claim that tenant Norma Schwartz and undertenant Marc Schwartz (hereinafter tenants) had violated their proprietary lease by harboring a dog without landlord cooperative corporation's consent, tenants moved to dismiss the petition and for an award of attorney's fees, asserting that they had harbored the dog openly and notoriously for more than three months and were thus protected under the New York City Pet Law (Administrative Code of City of N.Y. § 27–2009.1).   In opposition, landlord asserted that it had forbore from commencing this proceeding because it had relied, to its detriment, on a request by tenants for a period of three weeks to resolve the issue.   The Civil Court granted the branch of tenants' motion seeking to dismiss the petition but denied the branch of their motion seeking attorney's fees.   Tenants appeal from the denial of attorney's fees, and landlord cross-appeals from the dismissal of the petition.   We affirm.

 Notwithstanding landlord's claim that it refrained from commencing proceedings based on its reliance on tenants' assurance that the matter would be resolved, landlord's failure to commence the proceeding within three months constitutes a waiver of its no-pet provision (Administrative Code of N.Y. § 27–2009.1;  see Seward Park Hous. Corp. v. Cohen, 287 A.D.2d 157, 162–163, 734 N.Y.S.2d 42 [2001];  Riverdale Park Corp. v. McDermott, N.Y.L.J., May 8, 2002 [Civ.Ct., Bronx County] ).   Moreover, even assuming, as landlord asserts, that tenants could be estopped from relying on the Pet Law based on their request for three weeks to resolve the problem, landlord did not successfully show that the three-month period had not expired even if the three weeks were excluded.   Consequently, the Civil Court properly dismissed the petition.

 Contrary to landlord's contention, Real Property Law § 234, enacted in 1966, which establishes an implied covenant providing a residential tenant with a right to recover attorney's fees, applies retroactively to this proprietary lease executed in 1962 (see Duell v. Condon, 84 N.Y.2d 773, 783, 622 N.Y.S.2d 891, 647 N.E.2d 96 [1995] ).   Moreover, as Real Property Law § 234 is to be read broadly (see e.g. H.M. Vil. Realty v. Caccavale, 5 A.D.3d 289, 290, 773 N.Y.S.2d 543 [2004] ), there is no merit to landlord's contention that the statute's application should be limited to attorney's fees' provisions found in leases, and should not apply here, where the provision is found not in the lease but in the by-laws, as the by-laws, in addition to the lease provisions, may be enforced against tenants.   However, under the particular facts of this case, tenants are not entitled to attorney's fees, in view not only of their blatant disregard of the lease no-pet provision but also of their assurance to landlord that they would resolve the problem, an assurance which they did not fulfill (see Matter of Stepping Stones Assoc. v. Seymour, 48 A.D.3d 581, 584, 853 N.Y.S.2d 562 [2008];  Carlton Estates, Inc. v. Cruz, 31 Misc.3d 144[A], 2011 N.Y. Slip Op. 50878[U], 2011 WL 1878841 [App. Term, 2d, 11th & 13th Jud. Dists. 2011];  Beach Haven Apts. No. 1 v. Cheseborough, 2 Misc.3d 33, 773 N.Y.S.2d 775 [App. Term, 2d & 11th Jud. Dists. 2003];  but cf. 184 W. 10th St. Corp. v. Marvits, 29 Misc.3d 134[A], 2010 N.Y. Slip Op. 51970[U], 2010 WL 4668427 [App. Term, 1st Dept.2010] ).

Accordingly, the order is affirmed.