Appeal from a final judgment of the Justice Court of the Village of Scarsdale, Westchester County (John H. Galloway, III, J.), entered September 8, 2011. The final judgment, entered following landlord's default in appearing for trial and the denial of landlord's motion, in effect, to open the default, dismissed the petition and awarded tenant the principal sum of $16,500, on his counterclaim for the return of a security deposit, and the sum of $10,917.08, on his counterclaim for attorney's fees, in a nonpayment summary proceeding.

ORDERED that the final judgment is modified by reducing the amount of the award on tenant's counterclaim for the return of a security deposit to the principal sum of $3,000 and by dismissing the counterclaim for attorney's fees; as so modified, the final judgment is affirmed, without costs.

Upon a review of the record in this nonpayment summary proceeding, we are of the opinion that the Justice Court did not improvidently exercise its discretion in refusing to open landlord's second default in appearing for trial. By his own admission, landlord's attorney had been aware since July 13, 2010 that the trial had been rescheduled to a date in October 2010, and it was his obligation to ascertain the rescheduled date. As he failed to do so, landlord failed to establish an adequate excuse for the default.

Section 208 of the Uniform Justice Court Act provides that "[i]f a counterclaim for money only in excess of $3,000 is interposed, the court may entertain it to the extent of $3,000, but it shall be deemed waived as to the excess above $3,000." Thus, the Justice Court was not authorized to award an amount above $3,000 on each counterclaim. Consequently, the award to tenant of the principal sum of $16,500 on his counterclaim for the return of the security deposit must be reduced to the principal sum of $3,000.

Contrary to landlord's claim on appeal, the lease provision in question has been held sufficient to support an award of attorney's fees to a tenant pursuant to Real Property Law § 234 (see Casamento v Juaregui, 88 AD3d 345 [2011]). However, wefind, under all the circumstances presented, that tenant is not entitled to an award of attorney's fees (see e.g. Kralik v 239 E. 79th [*2]St. Owners Corp., 93 AD3d 569 [2012]).

We modify the final judgment accordingly.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: December 17, 2013