Opinion
570004/03, 03-314-320.
Decided December 27, 2004.
Tenants appeal 1) from a final judgment of the Civil Court, New York County, entered March 26, 1997 (Marcy S. Friedman, J.) upon a prior order which, inter alia, granted landlord's motion for partial summary judgment on the possessory aspect of the holdover petition; 2) from an order of the same court dated May 7, 1997 (Judith J. Gische, J.) awarding landlord post-petition use and occupancy at the rate of $4,330 per month; 3) from an order of the same court dated May 8, 1997 (Judith J. Gische, J.) which, sua sponte, amended the May 7, 1997 order by increasing the amount of use and occupancy to $4,530 per month; 4) from an order of the same court dated July 22, 1997 (Judith J. Gische, J.) awarding landlord a recovery of additional rent in the principal sum of $15,902.35; 5) from an order of the same court dated January 12, 1998 (Marcy S. Friedman, J.) which, inter alia, granted landlord's motion for attorney's fees and directed a hearing to determine the amount of reasonable attorney's fees due landlord; 6) from an order of the same court dated October 26, 1999 (Guy P. Tomlinson, J.) which, after a hearing, awarded landlord attorney's fees in the principal sum of $105,363; and 7) from an order of the same court dated February 1, 2000 (Guy P. Tomlinson, J.) which denied tenant's motion to renew and/or reargue the order of October 26, 1999.
Final judgment entered March 26, 1997 (Marcy S. Friedman, J.), affirmed, with $25 costs. Orders dated July 22, 1997 (Judith J. Gische, J.), January 12, 1998 (Marcy S. Friedman, J.), October 26, 1999 (Guy P. Tomlinson, J.), and February 1, 2000 (Guy P. Tomlinson, J.) affirmed, with one bill of $10 costs.
Appeals from orders dated May 7, 1997 and May 8, 1997 (Judith J. Gische, J.) dismissed, without costs, as abandoned.
PRESENT: HON. WILLIAM P. McCOOE, J.P. HON. WILLIAM J. DAVIS HON. PHYLLIS GANGEL-JACOB, JJ
Summary judgment of possession was properly awarded to landlord on its holdover petition, based upon the undisputed showing that the most recent commercial lease agreement executed by tenants — a law firm and its partners — expired by its own terms on September 30, 1988 and that the tenants' subsequent monthly leasehold was terminated by landlord upon proper notice. Also supported by the record are the monetary awards in landlord's favor in connection with the ancillary rent and attorney's fees issues litigated below.
With respect to additional rent, landlord persuasively established its entitlement to rent escalations for increases in the building's operating expenses as authorized under Article 41 of the rider to the parties' expired 1983 lease agreement, a copy of which was properly admitted into evidence ( see Prince, Richardson on Evidence § 10-201 [Farrell 11th ed]), and the terms of which were binding upon the holdover tenants ( see City of New York v. Pennsylvania R.R. Co., 37 NY2d 298, 300). The hearing court (Gische, J.) reasonably could conclude, based upon the testimonial and documentary evidence before it, that landlord timely billed tenants for the operating expense increases in accordance with the requirements of Article 41(c)) of the lease rider. In any event, giving proper effect to the "no waiver" provision of Article 41(h) of the rider, specifically providing that the landlord's "delay or failure . . . in billing any rent adjustments" would not "in any way impair the continuing obligation of tenant to pay such rent adjustment," we find unavailing tenant's claims of estoppel and waiver ( see Goldstein v. City of New York, 159 AD2d 313, 315).
The provisions of paragraph 19 of the parties' 1983 lease, unambiguously authorizing the landlord's recovery of attorney's fees in these circumstances, was also properly enforced against the holdover tenants ( see Matter of New Country Dev. Group v. Demitasse, Inc., 278 AD2d 728, 729). Considering, among other factors, the professional standing of landlord's counsel, the favorable results ultimately achieved, and the protracted nature of this 1993 "summary" eviction proceeding, we find the amount of the landlord's fee request, as reduced by the hearing court (Tomlinson, J.), to be within reasonable limits.
This constitutes the decision and order of the court.