| Rabney v Adams |
| 2007 NY Slip Op 51310(U) [16 Misc 3d 130(A)] |
| Decided on July 2, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Respondent Adams appeals from a final judgment of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered June 1, 2006, which, upon an order granting petitioner's motion for summary judgment, awarded possession to petitioner in a holdover summary proceeding. Petitioner cross-appeals from (1) that portion of an order (same court and Judge), entered June 1, 2006, which limited use and occupancy to the sum of $773 per month, and (2) an order (same court and Judge), dated August 1, 2006, which denied his motion for attorneys' fees.
Per Curiam.
Final judgment and order (David B. Cohen, J.), each entered June 1, 2006, and order (David B. Cohen, J.), dated August l, 2006, affirmed, with $25 costs.
Civil Court properly awarded possession to petitioner, the tenant of the subject Manhattan apartment, upon petitioner's revocation of respondent Adams' license (see RPAPL 713[7]). The record establishes beyond factual dispute that respondent had no independent tenancy rights following her surrender of the apartment pursuant to the parties' 1998 settlement divorce decree.Respondent waived her current challenge to the authentication of the New Mexico divorce decree by failing to raise it in her opposition papers to petitioner's motion for summary judgment. In any event, we discern no prejudice in Civil Court's acceptance of the divorce decree as authentic based upon substantial compliance with statutory requirements (see generally Sparaco v Sparaco, 309 AD2d 1029 [2003], lv denied 2 NY3d 702 [2004]).
Petitioner's motion for attorneys' fees was properly denied. Although petitioner was the prevailing party in this litigation, there was no lease agreement between the parties providing for attorneys' fees (see Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d l, 5 [1986]). Nor may petitioner recover attorneys' fees based upon the enforcement provision of the divorce settlement since, as correctly found by Civil Court, this licensee holdover proceeding did not arise from any default under the divorce decree. We have considered and rejected the remaining argument raised by petitioner on his cross appeal. [*2]
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 2, 2007