| Inwood Ventura, LLC v Ferraira |
| 2014 NY Slip Op 51847(U) [46 Misc 3d 132(A)] |
| Decided on December 30, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Landlord appeals from: (1) a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), entered on or about January 13, 2011, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding, and (2) an order (same court, Brenda S. Spears, J.), dated November 29, 2012, which granted tenant's motion for attorneys' fees in the sum of $22,562.25.
Per Curiam.
Final judgment (Jean T. Schneider, J.), entered on or about January 13, 2011, and order (Brenda S. Spears, J.), dated November 29, 2012, affirmed, with one bill of $25 costs.
Giving due deference to the trial court's findings of fact and credibility, we find no cause to disturb the court's ultimate determination that tenant did not create or allow a nuisance by permitting loud music to emanate from her apartment. It was within the province of the court, as factfinder, to credit the testimony of tenant and her witnesses, including her upstairs neighbor, that no loud music emanated from tenant's apartment, and to discount the countervailing testimony of a single (now-former) downstairs neighbor, one Bender (see generally Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). In this regard, the court expressly noted that landlord "received no complaints from any other tenants in the building, including those that occupied Mr. Bender's apartment before and after him."
Tenant achieved prevailing party status in defending the proceeding, and is entitled to attorneys' fees pursuant to the parties' initial lease agreement and the reciprocal provisions of Real Property Law § 234. Contrary to landlord's contention, the record does not disclose any equitable considerations warranting the denial of tenant's application for attorneys' fees. [*2]Landlord "has made no showing of any bad faith by [tenant], and the fact that [landlord's] position in this litigation has not been frivolous does not render it manifestly unfair to enforce the [tenant's reciprocal right to] attorney's fees ..." (Huron Assoc., LLC v 210 E. 86th St. Corp., 18 AD3d 231 [2005]; see Jacreg Realty Corp. v Barnes, 284 AD2d 280 [2001]). We note that landlord does not challenge the reasonableness of the amount of the attorneys' fees award.