Tenant Entitled to Attorney's Fees

Landlord sued to evict tenant. Tenant claimed that the petition wasn't served properly and asked the court to dismiss the case. Landlord and tenant later agreed that a traverse hearing would be held to determine whether the court papers were properly delivered. The traverse hearing didn't take place in July 2007 as anticipated. Instead, the case was marked off the court calendar because the building was sold. Later, tenant asked to restore the case to the calendar and sought attorney's fees. Landlord claimed that tenant wasn't entitled to attorney's fees because he hadn't prevailed in the case.
The court restored the proceeding to the calendar for a traverse hearing. In June 2008, the court dismissed the case because landlord wasn't ready to go forward with the traverse hearing. Tenant then renewed his request for attorney's fees. Landlord argued that tenant wasn't the prevailing party, that there was no lease provision granting tenant attorney's fees, and that tenant didn't formally ask for attorney's fees in his answer to the petition. The court ruled for tenant. Landlord's case was dismissed. It didn't matter whether the decision was on the merits. Tenant still was the prevailing party. Tenant's lease gave landlord the right to claim attorney's fees in the case of tenant default. So tenant had a reciprocal right under Real Property Law Section 234. And landlord was aware, because tenant made his request for attorney's fees by the motion in October 2007. So there was no surprise or prejudice to landlord.

Roco LLC v. Mackey: NYLJ, 12/16/08, p. 26, col. 1 (Civ. Ct. NY; Marton, J)