Opinion
No. 570060/11.
2012-06-25
1781 RIVERSIDE LLC, Petitioner–Landlord v. Oscar CASTILLO, Respondent–Tenant–Respondent.
Landlord appeals from so much of an order of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), entered December 3, 2010, as granted tenant's motion for attorneys' fees and directed a hearing to determine the reasonable value of such fees in a nonpayment summary proceeding.
Present: SHULMAN, J.P., HUNTER, JR., TORRES, JJ.
PER CURIAM.
Order (Peter M. Wendt, J.), entered December 3, 2010, insofar as appealed from, reversed, with $10 costs, and tenant's motion for attorneys' fees is denied.
Tenant's motion for attorneys' fees should have been denied since he failed to sustain his 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 [1996]; Partnership 92 W., L .P. v. Woods, 186 Misc.2d 445 [2000] ). Neither party produced a complete version of the original lease agreement, and the portion of the original lease relied upon by tenant contained neither the signature page nor any provision authorizing the recovery of attorneys' fees. Thus, on this record, any finding that the lease contained an enforceable attorneys' fees clause would rest upon sheer 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 ( see Rivertower Assocs. v. Chalfen, 167 A.D.2d 309 [1990] ).
Nor did the allegations set forth in the nonpayment petition—verified by landlord's counsel “upon information and belief”—constitute formal or informal judicial admissions on the attorneys' fee issue ( see Sound Communications, Inc. v. Rack and Roll, Inc., 88 AD3d 523 [2011];Roxborough Apts. Corp. v. Kalish, 29 Misc.3d 41 [2010] ). Finally, no basis is shown to judicially estop landlord from denying the existence of a lease with a valid attorneys' fees provision, since it did not obtain any formal grant of relief as a result of its prior request for attorneys' fees ( see Baje Realty Corp. v. Cutler, 32 AD3d at 310;HGCD Retail Servs., LLC v. 44–45 Broadway Realty Co., 37 AD3d 43, 48 [2006] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.