Opinion
570661/10
02-28-2012
Graham Court Owners Corp. . Petitioner-Landlord-Appellant- Cross-Respondent, v. Kyle Taylor, Respondent-Tenant-Respondent- Cross-Appellant.
PRESENT: , III, P.J., Schoenfeld, Hunter, Jr., JJ
Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), entered on or about July 26, 2010, after a nonjury trial, in favor of tenant dismissing the holdover petition, awarding tenant attorneys' fees pursuant to RPAPL § 223-b, and directing a hearing to determine the reasonable value of such fees. Tenant cross-appeals from so much of the aforesaid final judgment as dismissed his claims for attorneys' fees pursuant to Real Property Law § 234 and compensatory damages for "mental anguish" and other emotional injuries pursuant to Real Property Law § 223-b.
Per Curiam.
Final judgment (Jean T. Schneider, J.), entered on or about July 26, 2010, modified by deleting the provision thereof awarding tenant attorneys' fees pursuant to Real Property Law § 223-b; as modified, final judgment affirmed, without costs.
We agree, essentially for reasons stated by Civil Court, that landlord is estopped from enforcing the "no alterations" provision of the governing lease agreement (see Haberman v Hawkins, 170 AD2d 377 [1991]), based upon the tenant's persuasive showing that landlord's authorized agents expressly consented to the electrical work now complained of and the undisputed evidence that landlord, in connection with prior proceedings before DHCR, (falsely) asserted that its own contractors had effectuated the electrical work. "On a bench trial, the decision of the fact-finding court should not be disturbed on appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]).
In light of this determination, and in the absence of any competent showing by tenant that he sustained compensable damages as a result of landlord's unsuccessful prosecution of its possessory claim, we need not and do not address the merits of tenant's affirmative defense of retaliatory eviction (see Real Property Law § 223-b). We note that the above-cited provision does not meet the requirement that a statute expressly authorize an award of attorneys' fees (see Matter of Green v Porter, 51 NY2d 627, 629-630 [1980]; Braithwaite v 409 Edgecombe Ave. HDFC, 294 AD2d 233 [2002]).
The arguments raised by tenant on the cross appeal are lacking in merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur