Opinion
9620 Index 653668/11
06-04-2019
PARAMOUNT LEASEHOLD, L.P., Plaintiff–Respondent, v. 43RD STREET DELI, INC. doing business as Bella Vita Pizzeria, Defendant–Appellant.
Camarinos Law Group, LLC, New York (Michael D. Camarinos of counsel), for appellant. Rosenberg & Estis, P.C., New York (Norman Flitt of counsel), for respondent.
Camarinos Law Group, LLC, New York (Michael D. Camarinos of counsel), for appellant.
Rosenberg & Estis, P.C., New York (Norman Flitt of counsel), for respondent.
Friedman, J.P., Richter, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered June 19, 2018, which granted plaintiff's motion to set a hearing date to determine the amount of its reasonable attorneys' fees, costs, and disbursements, and denied defendant's cross motion to bar plaintiff's application for attorneys' fees, unanimously affirmed, without costs. Plaintiff established its entitlement to attorneys' fees under the parties' lease agreement by proving that defendant breached the percentage rent clause (see Paramount Leasehold, L.P. v. 43rd St. Deli, Inc., 136 A.D.3d 563, 26 N.Y.S.3d 258 [1st Dept. 2016], lv dismissed in part, denied in part 28 N.Y.3d 1024, 42 N.Y.S.3d 675, 65 N.E.3d 705 [2016] ) and that it, plaintiff, was thus the prevailing party in this dispute (see Graham Ct. Owner's Corp. v. Taylor, 115 A.D.3d 50, 55, 978 N.Y.S.2d 213 [1st Dept. 2014], affd 24 N.Y.3d 742, 5 N.Y.S.3d 348, 28 N.E.3d 527 [2015] ; Cier Indus. Co. v. Hessen, 136 A.D.2d 145, 149, 526 N.Y.S.2d 77 [1st Dept. 1988] ).
Plaintiff did not waive its right to attorneys' fees by postponing its application therefor until after the merits determination (see Monacelli v. Farrington, 240 A.D.2d 296, 658 N.Y.S.2d 623 [1st Dept. 1997] ; Grand Concourse Estates LLC v. Ture, 63 Misc.3d 139[A], 2019 N.Y. Slip Op. 50564[U], 2019 WL 1716900 [App. Term, 1st Dept. 2019] ; 101 Maiden Lane Realty Co., LLC v. Ho, 2002 N.Y. Slip Op. 50499[(U]) [App Term, 1st Dept 2002] ). Even a landlord's acceptance of a tenant's payment in satisfaction of a money judgment for rent "does not equate with an accord and satisfaction on the issue of attorneys' fees" (see Snake River Development, L.L.C. v. Andrew K & Associates, Inc., 2003 N.Y. Slip Op. 51450[U], 2003 WL 23095244 [App. Term, 1st Dept. 2003] ), citing, inter alia 815 Park Ave. Owners Inc. v. Metzger, 250 A.D.2d 471, 672 N.Y.S.2d 860 [1st Dept. 1998] ). Nor did plaintiff delay impermissibly in seeking attorneys' fees.
Defendant's reliance on Jay's Stores, Inc. v. Ann Lewis Shops, 15 N.Y.2d 141, 147, 256 N.Y.S.2d 600, 204 N.E.2d 638 [1965] and Hellstern v. Hellstern, 279 N.Y. 327, 333, 18 N.E.2d 296 [1938] in support of its theory of res judicata is misplaced. Those cases, and the policy that underlies them, have no application here, where there is no risk of re-litigation of the same issue and no possibility of inconsistent judgments.