Landlord appeals from an order of the Civil Court of the City of New York, New York County (Kevin C. McClanahan, J.), dated June 14, 2006, which denied its motion for attorneys' fees and sua sponte granted tenant leave to amend her answer to assert retaliatory and/or constructive eviction defense(s) in a holdover summary proceeding.

Per Curiam.

Order (Kevin C. McClanahan, J.), dated June 14, 2006, reversed, with $10 costs, landlord's motion for attorney's fees granted and matter remanded for a determination of the amount of reasonable attorneys' fees due landlord.

An attorney's fees award may be based on the ultimate outcome of the controversy, whether or not such outcome is on the merits. Tenant's determination not to contest the merits of the underlying holdover proceeding resulted in an ultimate outcome wholly favorable to landlord since it obtained the central relief sought, i.e. possession, by reason of tenant's surrender of the unregulated apartment (see Soho Vil. Realty v Gaffney, 188 Misc 2d 261 [2001]). In these circumstances, landlord qualifies as a prevailing party entitled to its reasonable attorney's fees, recoverable under paragraph 23(D)(3) of the now expired lease agreement. Nor is a proper basis to deny landlord's application for attorney's fees found in tenant's belatedly asserted defenses, alleging that she was "forced out" of the apartment as a result of landlord's (unsubstantiated) "harassment," particularly in view of tenant's express concession on appeal that she does not now intend to pursue the defenses.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 06, 2008