Appeal from an order of the Civil Court of the City of New York, Kings County (Oymin Chin, J.), dated January 29, 2010. The order, insofar as appealed from, denied the branch of tenants' motion seeking an award of attorney's fees.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Landlord commenced this holdover proceeding after terminating the tenancy based upon tenants' failure to cease using the basement portion of the subject apartment as a living room, which usage had resulted in the issuance of a violation by the Department of Buildings. Thereafter, the parties entered into a stipulation, implicit in which was an agreement that tenants had cured the breach to landlord's satisfaction by moving their furniture and personal items, and the matter was marked off the calendar so that the Department of Buildings could reinspect the basement. Soon after, landlord commenced a nonpayment summary proceeding against tenants. Tenants then moved for summary judgment dismissing the petition in this holdover proceeding based upon landlord's commencement of the nonpayment proceeding (but cf. Kern v Guller, 40 AD3d 1231 [2007]), and for attorney's fees. The Civil Court awarded tenants summary judgment dismissing the petition, but did not award them attorney's fees. We agree with the Civil Court that tenants were not entitled to an award of attorney's fees under the circumstances presented, even though the petition was dismissed (see Matter of Stepping Stones Assoc. v Seymour, 48 AD3d 581, 583 [2008]). Accordingly, the order, insofar as appealed from, is affirmed. [*2]

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 12, 2011