Opinion
2014-2695 S C
02-22-2016
Greenbrier Garden Apts., Appellant, v. Laurent J. Eustache, Respondent.
PRESENT: :
Appeal from a final judgment of the District Court of Suffolk County, Sixth District (David A. Morris, J.), entered April 7, 2014. The final judgment, insofar as appealed from, after a nonjury trial, upon awarding landlord possession, arrears and a late fee, failed to award landlord attorney's fees in a nonpayment summary proceeding.
ORDERED that the final judgment, insofar as appealed from, is affirmed, without costs.
Landlord commenced this nonpayment summary proceeding to recover arrears for February and March 2014 plus legal fees. After a nonjury trial, the District Court awarded landlord possession and one month's rent in the sum of $1,009, plus late fees. Landlord appeals, arguing that, inasmuch as it prevailed in the proceeding, it was also entitled to an award of attorney's fees.
Courts have discretion to deny legal fees based on equitable considerations and fairness (Kralik v 239 E. 70th St. Owners Corp., 93 AD3d 569 [2012]). This discretion should be exercised "where bad faith is established on the part of the successful party or where unfairness is manifest" (Jacreg Realty Corp. v Barnes, 284 AD2d 280 [2001]). In the instant case, the court providently exercised its discretion in denying landlord's application for attorney's fees.
The evidence at trial established that tenant's check for the December 2013 rent, which tenant testified that he had sent, had apparently never been negotiated. It was undisputed that tenant had continued to pay, and landlord had continued to accept, rent for the months after December 2013. As tenant paid the subsequent months with earmarked checks, landlord was not within its rights in applying those payments to the alleged earlier arrears (134-38 Maple St. Realty Corp. v Medina, 3 Misc 3d 134[A], 2004 NY Slip Op 50469[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; L & T E. 22 Realty Co. v Earle, 192 Misc 2d 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]; Kew Realty Co. v Charles, NYLJ, June 3, 1998 [App Term, 2d Dept, 2d & 11th Jud Dists]). In addition, there was testimony that a new property manager had commenced working for landlord at the beginning of December 2013. The District Court apparently found that, since it was these circumstances—together with the fact that tenant, despite his requests for information from the management office, had not received all the information necessary to understand that the check for December 2013 had not been received and that the December 2013 rent was still due—which had given rise to this proceeding, it would be unfair to award landlord attorney's fees. We find no basis in the record to disturb the District Court's determination.
Accordingly, the final judgment, insofar as appealed from, is affirmed.
Iannacci, J.P., Tolbert and Connolly, JJ., concur. Decision Date: February 22, 2016