Opinion
SP 005525/09.
Decided February 1, 2010.
Mary T. Lucere, PLLC, Attorneys for Petitioner, Seaford, New York.
David Berg, Esq., Attorney for Respondent, Garden City, New York.
The respondent moves for an order awarding attorneys' fees pursuant to RPL § 234. For the following reasons, the motion is denied.
Real Property Law § 234 provides, in pertinent part:
"Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys' fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease . . . there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys' fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease and an agreement that such fees and expenses may be recovered . . .".
In short, the statute guarantees to a successful tenant that which the lease assures a successful landlord. The implied covenant, imposing on a landlord the reciprocal duty to compensate a tenant for attorneys' fees, was intended to effect mutuality in housing litigation, and to redress the inequality of bargaining power in the landlord-tenant relationship ( see, Feirestein v. Moster, 124 Misc 2d 369, 477 NYS2d 545).
A landlord or tenant is entitled to attorney fees, however, only when it can be said that the landlord or tenant is the "prevailing party" in a "controversy" which reaches an "ultimate outcome" ( Elkins v. Cinera Realty, 61 AD2d 828, 402 NYS2d 432 [2d Dept 1978]; see also Centennial Restorations Co. v. Wyatt, 248 AD2d 193, 669 NYS2d 585 [1st Dept 1998]).
In Elkins, supra, the landlord had commenced a total of three summary proceedings against its tenant. The first two were dismissed without prejudice: the first, because the landlord failed to appear; and the second, because the petition had not been properly verified. The court denied the tenant's application for attorneys' fees because the third summary proceeding had already been commenced on the same theory. The Second Department held that since the controversy had not yet been finally determined, the tenant's application for attorneys' fees was premature. The Court reasoned that if the landlord is ultimately successful in recovering the rent due under the lease, it would be unjust to allow the plaintiff-tenant to recover his reasonable attorney's fees based on the outcome of each separate stage of what is clearly one controversy.
A controversy reaches an "ultimate outcome" when a court disposes of an action on the merits, or when it becomes clear that an action, although not disposed of on the merits, cannot or will not be commenced again on the same grounds. A tenant may be entitled to attorneys' fees, for example, when a landlord discontinues a proceeding for a second time and the applicable law does not permit the landlord to recommence a third proceeding ( Centennial Restorations Co. v. Wyatt, supra, 248 AD2d 193, 669 NYS2d 585 [1st Dept 1998]), or when a court dismisses a petition on a procedural ground and the landlord decides, for one reason or another, not to commence another proceeding against the tenant ( Park South Associates v. Essebag, 126 Misc 2d 994, 995, 487 NYS2d 252 [App Term 1st Dept 1984]; N.V. Madison Inc. v. Saurwein, 103 Misc 2d 996, 998-999, 431 NYS2d 251 [App Term 1st Dept 1980]).
A controversy does not reach an "ultimate outcome" sufficient to entitle a litigant to the award of attorneys' fees, however, when an action is dismissed on procedural grounds or is otherwise discontinued and there is some indication that the action may be recommenced at a later time ( see, Roxborough Apartment Corp v. Becker, 177 Misc 2d 408, 676 NYS2d 821).
Here, the petitioner withdrew its Petition and Notice of Petition and commenced a second summary non payment proceeding against the respondent. That action is currently pending before the undersigned. Thus, as in the holding of Elkins, if the petitioner is successful in recovering the rent due under the lease in the present matter, it would be unjust to allow the tenant to recover his reasonable attorney's fees, at this stage, based upon the outcome of what is clearly one controversy ( Elkins v. Cinera Realty, 61 AD2d 828, 402 NYS2d 432 [2d Dept 1978]).
For the foregoing reasons, the respondent's motion for attorney's fees in denied.
This Constitutes the Decision and Order of the Court.
So Ordered: