Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Procedural History and Relevant Factual Background

This summary holdover proceeding was brought by 417 E 9th Partners LLC and Witnick 417 E 9th St LLC, as tenants in common ("Petitioner"), seeking to recover possession of 417 East 9th Street, Unit 19, in New York, NY ("the Subject Premises"), from Clinton Agresti and "John Doe" and "Jane Doe" ("Respondents"), following service of a 90-Day Notice of Termination and Notice of Non-Renewal. In addition to possession of the subject premises, the petition also sought an award of use and occupancy and legal fees (NYSCEF 1).

Respondent Agresti, by counsel, filed an answer which raised, inter alia, a defense of improper deregulation and a counterclaim for legal fees (NYSCEF 10). The proceeding was conferenced, and the parties engaged in motion practice in the Resolution Part between October 2022 and January 2023. In January 2023, the proceeding was sent out to the Trial Part and a trial was conducted on the following dates: April 28, June 1, June 2, June 20, and October 25, 2023.

In its trial decision dated July 30, 2024, the Court found in favor of Petitioner, awarded Petitioner a final judgment of possession against Respondents, and awarded a monetary judgment in the amount of $25,335.00, at a monthly rate of $2,815.00, representing all outstanding use and occupancy due through June 30, 2023 (NYSCEF 34). Respondent's [*2]counterclaims were dismissed by the Court. The decision further stated that the award of use and occupancy was granted without prejudice to any use and occupancy accruing after trial, and permitted Petitioner to move for an additional money judgment for same.

Whereas possession is no longer at issue, Petitioner's motion (seq. 3) seeks a money judgment against Respondent Agresti for use and occupancy for the period, October 1, 2022 through August 31, 2024, in the amount of $108,000.00, representing twenty-four (24) months, at $4,500.00 per month. Additionally, the motion seeks a separate money judgment against Respondent Agresti for attorneys' fees, in the amount of $51,381.81.

Respondent filed opposition to Petitioner's motion arguing that, with respect to Petitioner's claim for use and occupancy, MDL §302(1)(a) bars collection of rent as there is no Certificate of Occupancy ("-OO") for the Subject Premises, and that the present use of the Subject Premises is inconsistent with the COO as the apartment was converted into a two-bedroom unit. Respondent further opposed Petitioner's claim for an award of legal fees arguing that the HSTPA 2019 amendments to RPAPL §702 prevent Petitioner from recovering legal fees in summary proceedings.

Discussion

Use and Occupancy

RPAPL §741(5) provides that in a summary proceeding "the relief sought may include a judgment for rent due, and for a period of occupancy during which no rent is due, for the fair value of use and occupancy of the premises if the notice of petition contains a notice that a demand for such a judgment has been made." The Court is unpersuaded by Respondent's arguments that MDL §302(1)(a) bars Petitioner from collection of use and occupancy for the Subject Premises. Notably, the issue of Petitioner's ability to collect use and occupancy was litigated at trial and the Court granted Petitioner an award of use and occupancy finding "no evidence of an outstanding COO violation against th[e] building; only Respondent's supposition." (See, NYSCEF 34, page 7).^[FN1]

At trial, a construction inspector employed by the Department of Builds ("DOB") testified that the subject building has an I-Card which serves a similar function as a COO, and further testified that a change in the number of bedrooms in an apartment does not require a new COO. (See NYSCEF 34, page 6).

Respondent cannot now seek to relitigate these issues. Carmona v Mathisson, 92 AD3d 492, 493 (1st Dept 2012) ("Under the doctrine [of the law of the case], parties or their privies are preclude[d from] relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue") (internal quotations omitted); and Kronish Lieb Weiner & Hellman, LLP v Tahari, Ltd, 11 Misc 3d 1057(A) (Sup Ct, NY County 2006)^[FN2] ("Whether labeled stare decisis, law of the case, collateral estoppel, or res judicata the court concludes that the question of possession has already been decided and that [Plaintiff] is entitled to summary judgment on the issue of liability. . .") (internal citations omitted).

Thus, use and occupancy may be recovered under these circumstances. "The reasonable value of use and occupancy is the fair market value of the premises after the expiration of the leaseY and it is the landlord, not the tenant, who has the burden of proving reasonable value of use and occupancy." Mushlam, Inc v Nazor, 80 AD3d 471, 472 (1st Dept 2011) (internal citations omitted); see also, RPAPL §749(3). While the rent paid under the last lease agreement may be relevant to a determination of the value of use and occupancy, it is not conclusive. Beacway Operating Corp v Concert Arts Society, Inc, 123 Misc 2d 452, 474 NYS2d 227 (Civ Ct, NY County1984).

Here, Petitioner has met its burden of proving that the reasonable value of use and occupancy for the Subject Premises is $4,500.00 per month. Petitioner's motion is supported by an affidavit by a licensed real estate broker who attested to conducting an assessment of the value of the Subject Premises, based upon the average rents of vacant spaces with similar characteristics in the immediate area (NYSCEF 41). Petitioner's motion was further supported by the brokerage firm's market analysis of the Subject Premises (NYSCEF 52), and listings for similar rental units in the building (NYSCEF 53). Moreover, Respondent's opposition did not challenge the amount of use and occupancy sought by Petitioner. As such, a hearing on the reasonable value of use and occupancy is not required.

Attorneys' Fees

A prevailing party is typically entitled to an award of attorneys' fees where they are successful in obtaining the "central relief sought", and where recovery of said fees is authorized by an agreement between the parties, or by statute. Nestor v McDowell, 81 NY2d 410 (1993); and see also Hooper Associates, Ltd v AGS Computers, Inc, 74 NY2d 487 (1989). Here, Petitioner was awarded a judgment of possession against Respondents, after trial, and Respondent's counterclaims were dismissed, as unproven (NYSCEF 34). As such, there can be no dispute that Petitioner is the prevailing party in the instant proceeding.

As relevant to Petitioner's request for attorneys' fees, Article 15 of Respondent's lease (see NYSCEF 44) states as follows:

If the Tenant shall at any time be at default hereunder and the Landlord shall incur any expenses (whether paid or not) in performing acts which the Tenant is required to perform, or in instituting any action or proceeding based on such default, or defending, or asserting a counterclaim in, any action or proceeding brought by the Tenant, the expense thereof to the Landlord, including reasonable attorneys' fees and disbursements, shall be paid by the Tenant to the Landlord, on demand, as additional rent.

Despite the clear language of the lease, Respondent argues that Petitioner cannot recover fees in the instant holdover proceeding because the HSTPA 2019 amendments to RPAPL §702 prevent Petitioner from recovering legal fees in summary proceedings under Article 7.

New York State Real Property Law, Article 7, contains the primary state law governing the terms of the relationship between a Landlord and Tenant, while the Real Property Actions and Proceedings Law is the key procedural statute which governs summary eviction proceedings. For example, RPAPL §701 directs the jurisdiction of such a special proceeding, its venue and court, §702 dictates what constitutes rent in such a summary proceeding, §711 includes grounds where a landlord-tenant relationship exists, §713 includes grounds where no [*3]such relationship exists, §741 dictates the contents of the petition, and so forth.

Substantial amendments were made in 2019 and 2021 by the HSTPA^[FN3] , and among them, Section M included an amendment to RPAPL §702 with the following language:

RPAPL §702(1) Rent in a residential dwelling. (1) In a proceeding relating to a residential dwelling or housing accommodation, the term "rent" shall mean the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement. No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement.

As the heading suggests, this procedural statute defines the boundaries of what is collectable as 'rent' in a proceeding related to a residential dwelling or housing accommodation. The portion of the language at issue, to wit, "No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement", must be read in context with the issue addressed by the statute, namely, the suit for rent in a residential dwelling.

Historically, a Landlord's request for fees was sometimes mischaracterized as 'additional rent' in the petition, often in accordance with the terms of lease agreements which allowed for proceeding to be brought for monthly rent and additional rent. The subsequent application of a Tenant's payments to those fees, was a common practice which resulted in misapplied payments of rent to cover legal and late fees. Evictions resulted from this practice. In order to prevent the practice, and ensure that cases were being brought to collect rent instead of fees, the statute was so amended. Therefore, the reference to fees in the HSTPA amendment provides explicit instruction that fees cannot be sought as rent in a summary proceeding. The Court reads this language to mean that fees, charges and penalties are restricted from being sought to collect rent in a residential proceeding, cannot be part of the grounds for a summary proceeding seeking possession, and must therefore be sought in a separate court action.

The intent of the Legislature to prevent eviction for nonpayment of fees, i.e. to end possessory judgments containing such fees, is further supported by the HSTPA's bill jacket which summarizes the purpose of RPAPL §702(1) as follows:

*Section eleven defines "rent" for the purposes of eviction proceedings to exclude extraneous fees and charges to protect tenants from eviction due to failure to pay fees.^[FN4]

However, the Court does not read the language to preclude legal fees in general, or to prevent a prevailing party from seeking non-possessory legal fees, where allowed by lease or statute. If such was the case, then RPL §234, also amended by the HSTPA, and which explicitly creates a reciprocal right for the recovery of legal fees in any action or summary proceeding, would have been amended to preclude all legal fees in summary proceedings. Instead, RPL §234, titled, "Right to recover attorneys' fees in actions or summary proceeding arising out of [*4]leases of residential property", explicitly creates a reciprocal right for tenants to recover legal fees "in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant." (emphasis added).

The HSTPA 2019 amendments included revisions to RPL §234 which (1) removed the word "tenants" from the section's title, leaving it to read "Right to recover attorneys' fees in actions or summary proceedings arising out of leases of residential property", and (2) precluding landlords from recovering legal fees on a default judgment. Had the Legislature intended to preclude the ability to seek legal fees by a prevailing party, the HSTPA amendments to RPL §234 would have so stated. Instead, the Legislature left the language that such fees were collectable in any action or summary proceeding.

Respondent cites to cases in support of his position that RPAPL §702(1) prevents a prevailing party from recovering legal fees in any Housing Court case. In Caprice Assoc v Martel, 81 Misc 3d 704 (Sup Ct, NY County 2023), the issue before the Supreme Court was whether bringing a separate plenary action to recover attorneys' fees was barred by the claim-splitting doctrine. The Court carefully analyzed the amendments to RPAPL §702, including the Legislative intent, and ultimately concluded that the language of that section did not allow a prevailing party to recover legal fees in a summary proceeding. After reviewing the statute, this Court respectfully disagrees.

Respondent also relies on 744 E 215 LLC v Simmonds, 65 Misc 3d 1234(A) (Civ Ct, Bx County 2019), a case in which the Court struck a counterclaim for legal fees on the basis that the HSTPA 2019 amendments prevented parties from seeking fees in Housing Court. Although a few other Housing Court cases have followed the same reasoning, it is worth noting that the same Court subsequently issued a decision declining to strike a counterclaim for legal fees, stating that "to the extent that this court held differently in 744 E 215 LLC v Simmonds, the court does not believe the HSTPA's amendments to RPAPL §702 and RPL §234 are a bar to fees being awarded to the prevailing party." Underhill Realty Co, LLC v Almonte, 2024 NY Slip Op 33468(U) (Civ Ct, Bx County 2024) (internal citations omitted).

Petitioner argues that RPAPL §702(1) does not preclude the recovery of legal fees in summary holdover proceedings as the statute serves the limited purpose of defining "rent" that is collectible in summary proceedings. While the question of whether a prevailing party can recover legal fees in a summary proceeding following the HSTPA 2019 amendments to RPAPL §702 has not been directly addressed by the Appellate Courts, for the reasons stated herein, this Court agrees with Petitioner's reasoning and concludes that the legislative intent was to protect Tenants from the collection of fees disguised as rent, and to protect Tenants from evictions where such fees were sought as rent. The Court does not agree that the statutory amendments precluded a prevailing party from seeking non-possessory legal fees where otherwise allowed by contract or statute.

The Court finds that the analysis of the amendment must be akin to the reasoning in Beco v Ritter, 190 AD3d 1150 (3d Dept 2021), wherein the Court focused on RPL §238-a and RPAPL §702 in order to protect the tenant from an improper fee. In that case, the Court reasoned that a discounted rental payment schedule was, in actuality, an unenforceable fee which imposed a penalty that may not be sought in a summary proceeding.

Whereas there is no dispute that Petitioner is the prevailing party in the instant matter, the remaining question for the Court is whether the legal fees sought by Petitioner are reasonable. "As a general matter, case law establishes that where a landlord has a right to recover attorneys' [*5]fees pursuant to a lease provision, the recoverable fees are those that are reasonable." Solow Mgmt Corp v Tanger, 19 AD3d 225, 226 (1st Dept 2005)^[FN5] . Factors to be considered in determining the reasonableness of attorneys' fees include: "time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved." In re Estate of Freeman, 34 NY2d 1, 9 (1974).

While the court has the responsibility to determine that the attorneys' fees amount awarded is reasonable, a hearing is not always required, particularly where the amount of the fees sought is not being challenged by the opposing party. Old Paris, Inc v GEBM Int'l, Inc, 170 AD2d 392 (1st Dept 1991) ("[W]e find that the IAS Court did not abuse its discretion in awarding plaintiff legal fees without first conducting an evidentiary hearing where, as in the case at bar, the amount of the fees sought was not challenged by the defendants"); and Matter of Fid Brokerage Servs v Merrill Lynch, Pierce, Fenner & Smith Inc, 294 AD2d 244 (1st Dept 2002) ("Since [the parties] motion papers contained ample documentation of the fees and costs requested and [respondent] did not challenge the amounts, a hearing was not required").

Petitioner's motion is supported by an attorney affirmation detailing the firm's billing practices and the skills and qualifications of the attorneys and support-staff who performed work related to the instant proceeding (NYSCEF 42). Additionally, the motion is supported by a fee history report (NYSCEF 51) which details the time that each attorney or support-staff spent on the matter, the hourly rate of that individual, as well as a description of the work conducted. Whereas Petitioner's motion sufficiently sets forth the basis for the fees sought in the instant proceeding, and the amount has not been challenged by Respondent, an evidentiary hearing is not required.

Accordingly, Petitioner's motion is granted to the extent that Petitioner is awarded a monetary judgment against Respondent in the amount of $63,000.00, at a monthly rate of $4,500.00, representing all outstanding use and occupancy due, reduced by the Court to a period from July 2023^[FN6] through August 2024.

Additionally, Petitioner is awarded a monetary judgment in the amount of $51,381.81 against Respondent, representing attorneys' fees incurred by Petitioner in the commencement and prosecution of the instant proceeding, as the prevailing party and in accordance with the lease provisions.

This constitutes the decision and order of this Court.