| Jobman 478/480 L.P. v Bell |
| 2005 NY Slip Op 52011(U) [10 Misc 3d 131(A)] |
| Decided on December 9, 2005 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Tenants appeal from an order of the Civil Court, New York County (Maria Milin, J.), dated May 10, 2004, which granted landlord's motion for attorney's fees and denied tenants' cross motion for attorney's fees in this nonpayment summary proceeding.
PER CURIAM
Order (Maria Milin, J.), dated May 10, 2004, modified to deny landlord's motion for attorneys' fees, and as so modified, affirmed, without costs.
The determination of "prevailing party" status "requires an initial consideration of the true scope of the dispute litigated followed by a comparison of what was achieved within that scope" (Excelsior 57th Corp. V Winters, 227 AD2d 146 [1996]). After trial in this protracted nonpayment proceeding, landlord ultimately obtained a possessory and monetary judgment. The crux of the dispute, however, was confined to whether landlord was entitled to fuel adjustment charges and MCI increases. Tenant insisted that landlord was not entitled to the increase because it had applied for a J-51 tax abatement which would result in a rent reduction rather than an increase.
While landlord prevailed at trial to the extent that the court found that it had applied for the tax abatement and DHCR had not yet issued a reduction order, subsequent to trial, DHCR determined that landlord had in fact received the tax abatement and failed to disburse the required rent rebates to tenant. Consequently, DHCR directed landlord to refund or credit to tenant the excess rent collected, retroactive to July 1, 1997, which was prior to the commencement of the nonpayment proceeding in November 1998. Thus, the history and mixed outcome of the parties' rental dispute litigated at trial and before DHCR was not "substantially favorable" to either party, and neither party achieved prevailing party status for the purpose of receiving attorneys' fees (see Pelli v Connors, 7 AD3d 464 [2004]; Walenta v Johnes, 257 AD2d [*2]352, 354 [1999], appeal dismissed 93 NY2d 958 [1999]).
This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: December 09, 2005