Opinion
No. 12–149.
2012-12-6
251 CPW HOUSING LLC, Petitioner–Landlord–Appellant, v. Yitzhak “James” PASTREICH, Respondent–Tenant–Respondent, and Jane/John Doe, Respondents–Undertenants.
Landlord appeals from an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated June 6, 2011, which granted tenant's motion for attorneys' fees and directed a hearing to determine the reasonable value of such fees in a holdover summary proceeding.
Present: LOWE, III, P.J., SCHOENFELD, HUNTER, JR., JJ.
PER CURIAM.
Order (John H. Stanley, J.), dated June 6, 2011, reversed, with $10 costs, and tenant's motion for attorneys' fees is denied.
Tenant's motion for attorneys' fees should have been denied because landlord's possessory claim, relying largely on the 2003 rent law amendments embodied in Rent Stabilization Law (Administrative Code of City of NY) § 26–511[c][14] ), was of colorable merit at the time this “summary” eviction proceeding was commenced in or about January 2005 ( see Kralik v. 239 E. 79th St. Owners Corp., 93 AD3d 569, 570 [2012];Wells v. East 10th St. Assoc., 205 A.D.2d 431 [1994],lv denied84 N.Y.2d 813 [1995] ), as reflected by the lengthy and circuitous history of the related DHCR and CPLR Article 78 proceedings between the parties ( see Matter of Pastreich v. New York State Div. of Hous. and Community Renewal, 50 AD3d 384 [2008];see also Matter of Coffina v. New York State Div. of Hous. and Community Renewal, 61 AD3d 404 [2009] ). Although “entitlement to attorneys' fees under a lease clause is a matter of contractual right, a court's authority to withhold fees in a particular case is not so closely confined and may turn upon equitable factors or other considerations fact-specific to the litigation” (Rose v. Montt Assets, Inc., 187 Misc.2d 497, 499 [2000];see Solow Mgt. Corp. v. Lowe, 1 AD3d 135 [2003] ).
We note, in any event, that tenant would not be entitled to recover counsel fees incurred in connection with the related agency and CPLR Article 78 proceedings ( see Blair v. New York State Div. of Hous. and Community Renewal, 96 AD3d 687 [2012] ).