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338 W. 46th St. Realty, LLC v. Morton

Supreme Court, Appellate Term, First Department, New York.
Dec 18, 2015
2015 N.Y. Slip Op. 51845 (N.Y. App. Term 2015)

Opinion

No. 570421/10.

12-18-2015

338 WEST 46TH STREET REALTY, LLC, Petitioner–Landlord–Respondent, v. George MORTON, Edward Eisele, Robert Leonardi, Ute Keyes, a/k/a Ute Schmid and Robyn J. Davis, Respondents–Tenants–Appellants.


Order (Arlene H. Hahn, J.), dated June 13, 2014, insofar as appealed from, modified to the extent of granting that portion of tenants' motion seeking additional attorneys' fees incurred in successfully defending the prior appeal to this court, and remanding the matter to Civil Court for a determination of the reasonable amount of such fees; as modified, order affirmed, without costs.

In view of landlord's prior unsuccessful appellate challenge to the determination awarding tenants $46,137.27 in attorneys' fees as the prevailing parties in these consolidated holdover proceedings (see 338 W. 46st St. Realty LLC v. Leonardi, 32 Misc.3d 131[A], 2011 N.Y. Slip Op 51333[U] [App Term, 1st Dept 2011] ), tenants are entitled to an award of additional attorneys' fees for the time incurred in defending that fee award on the prior appeal (see Senfeld v. I.S.T.A. Holding Co., 235 A.D.2d 345 [1997], lv dismissed 91 N.Y.2d 956 [1998], lv denied 92 N.Y.2d 818 [1998] ; Washburn v. 166 E. 96th St. Owners Corp., 166 A.D.2d 272 [1990] ; Duell v. Condon, 200 A.D.2d 549 [1994], affd 84 N.Y.2d 773 [1995] ). However, since landlord succeeded on that prior appeal to the limited extent that it challenged a distinct legal fee award relating to a DHCR proceeding, tenants are not entitled to any additional fees for time expended defending that separate award (see generally Conner v. City of Santa Ana, 897 F.2d 1487, 1494 [9th Cir1990], cert denied 498 U.S. 816 [1990] [awarding fees for only the time expended on issues which plaintiff succeeded on the merits in defending appeal] ).

We agree, however, that tenants were not the prevailing parties in their prior appeal to the Appellate Division, First Department (see 338 W. 46th St. Realty, LLC v. Morton, 103 AD3d 518 [2013] ), and are not entitled to any additional fees relating to that appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur


Summaries of

338 W. 46th St. Realty, LLC v. Morton

Supreme Court, Appellate Term, First Department, New York.
Dec 18, 2015
2015 N.Y. Slip Op. 51845 (N.Y. App. Term 2015)
Case details for

338 W. 46th St. Realty, LLC v. Morton

Case Details

Full title:338 WEST 46TH STREET REALTY, LLC, Petitioner–Landlord–Respondent, v…

Court:Supreme Court, Appellate Term, First Department, New York.

Date published: Dec 18, 2015

Citations

2015 N.Y. Slip Op. 51845 (N.Y. App. Term 2015)
29 N.Y.S.3d 850

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