No Attorney's Fees for Tenant Who Proved Landlord's No-Pet Clause Waiver

(Decision submitted by Paul N. Gruber, of the New York law firm Borah, Goldstein, Altschuler, Nahins & Goidel, P.C.)
Landlord sued to evict tenant for keeping two cats in violation of a no-pets clause in her lease. The court ruled for landlord, finding that tenant violated her lease. Tenant appealed twice and won. She proved that she kept the cats openly and notoriously for a sufficient time without landlord's objection. Tenant then asked the court to award her attorney's fees as the prevailing party. The court ruled against tenant. Real Property Law (RPL) Section 234 permits an award of attorney's fees to a tenant if the lease provides for landlord's recovery of attorney's fees based on tenant's failure to comply with her lease. Although tenant proved landlord's waiver, she did violate her lease by keeping the cats in her apartment. So it would violate the underlying policy reason for RPL Section 234 to give tenant attorney's fees in this case.

184 West 10th Street Corp. v. Marvitz: Index No. 54949/05 (Civ. Ct. NY; Hahn, J) [2-pg. doc.]