Tenant Gets Attorney's Fees

Landlord cooperative corporation entered tenant-shareholder's apartment without prior notice to tenant on Aug. 25, 2011, in response to neighbors' complaints of a stench coming from tenant's apartment. Landlord replaced kitty litter and left the apartment. At the time, tenant was upstate as part of a Hurricane Irene rescue team. He returned on Aug. 27 and removed the cat from the apartment. The odor decreased significantly after that. Landlord then sued tenant on Sept. 1 for injunctive relief and damages for violation of tenant's proprietary lease. Landlord sought court authorization to remove "junk and filth" from the apartment as well as tenant's "neglected" house cat. Landlord claimed that apartment conditions required an immediate, emergency response. The court granted landlord's request for a temporary restraining order pending a hearing on how much access landlord should have to remove odor-producing garbage from tenant's apartment.

After the hearing, the court ruled against landlord and denied its request for attorney's fees, finding that landlord had violated tenant's proprietary lease by resorting to self-help before sending tenant a 10-day notice to cure. The court also had given landlord preliminary permission to remove food and organic matter that may have produced an odor, but a video recording showed that landlord engaged in a wholesale removal of items from tenant's apartment. Also, the cat had been removed before landlord started its case, and there was no continuing nuisance. The court also denied tenant's request for attorney's fees.

Tenant appealed and won. Tenant was the prevailing party in the dismissed case and was entitled under case law to attorney's fees. Landlord acted improperly by failing to give tenant notice and an opportunity to cure before entering tenant's apartment. Two of the judges disagreed with the panel's decision, stating that landlord responded to emergency conditions and that the court had the discretion to deny attorney's fees given the apartment conditions.

433 Sutton Corp. v. Broder: 2013 NY Slip Op 04894, 2013 WL 3214564 (App. Div. 1 Dept.; 6/27/13; Gonzalez, PJ, Mazzarelli, Moskowitz, Renwick, Manzanet-Daniels, JJ)