Opinion
570867/03.
Decided June 25, 2004.
Plaintiffs appeal from an order of the Civil Court, New York County, entered April 15, 2003 (Joan M. Kenney, J.) which denied their motion for summary judgment and granted defendants' cross motion for summary judgment dismissing the complaint.
Order entered April 15, 2003 (Joan M. Kenney, J.) reversed, with $10 costs, defendants' cross-motion denied, plaintiffs' motion for summary judgment granted, and the matter remanded for a hearing to determine the amount of reasonable attorneys' fees due plaintiffs.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS HON. PHYLLIS GANGEL-JACOB, Justices.
The January 2000 owner use holdover proceedings underlying the (plaintiff-)tenants' claims for attorneys' fees were discontinued, on (defendant-)landlord's eve-of-trial motion in July 2001, upon "condition" that the tenants' counterclaims for legal fees be "severed without prejudice to [a] plenary suit". In this posture, and given the landlord's ready acknowledgment that the medical circumstances giving rise to their owner use claims are no longer extant, the "ultimate outcome" of the underlying possessory proceedings was reached in favor of the tenants, "whether or not such outcome [was] on the merits" ( Centennial Restorations Co. v. Wyatt, 248 AD2d 193, 197, quoting Elkins v. Cinera Realty, 61 AD2d 828). Tenants thus achieved prevailing party status in defending the owner use proceedings, and are entitled to attorneys' fees pursuant to the parties' lease agreements and the reciprocal provisions of Real Property Law § 234. We note parenthetically that although the Housing Court did not affirmatively condition its ultimate order of discontinuance upon an award of costs pursuant to CPLR 3217(b), the court previously had declined the landlord's request to discontinue the owner use proceedings without costs, in view of the "trial ready" status of the case.
This constitutes the decision and order of the court.