Summary
In Peachy v. Rosenzweig, 215 AD2d 301 (1st Dept. 1995), the landlord was the prevailing party based on winning a money judgment and judgment of possession, whereas the tenants were successful only on their affirmative defense of breach of warranty, and were unsuccessful as to their twelve other affirmative defenses (Id. at 302).
Summary of this case from Reade v. 405 Lexington, LLCOpinion
May 23, 1995
Appeal from the Supreme Court, First Department (Parness, J.P., Miller and McCooe, JJ.).
In this non-payment possessory proceeding, we find that the petitioner landlord has obtained the status of a "prevailing party" in the underlying litigation, based upon the fact that, after ten days of trial, during which the tenants interposed thirteen affirmative defenses, the landlord obtained judgment for nearly $62,000, including a possessory judgment, whereas, tenants were only successful on one affirmative defense for a breach of warranty and awarded approximately $4,800 (see, Solow v Wellner, 205 A.D.2d 339, 340-341, lv granted 207 A.D.2d 1045). We therefore remand for calculation of pre-judgment interest with respect to the possessory judgment of $22,236, pursuant to CPLR 5001 (a) (Delulio v 320-57 Corp., 99 A.D.2d 253, 254), and calculation of an appropriate award of petitioners' attorneys' fees.
Concur — Rosenberger, J.P., Ellerin, Rubin, Ross and Tom, JJ.