54 A.D.2d 636 | N.Y. App. Div. | 1976
Order of the Supreme Court, New York County, entered November 21, 1975, granting plaintiffs motion for summary judgment, unanimously reversed, on the law, the motion denied and the complaint dismissed, with $60 costs and disbursements to appellant. Plaintiff, a co-operative apartment corporation, instituted suit against defendant, one of its tenant shareholders, to recover $15,898 for attorneys’ fees and disbursements incurred in a successful summary proceeding resulting in defendant’s conditional eviction. On appeal in the summary proceeding, this court held that defendant’s harboring of a dog was a knowing and willful lease violation (40 AD2d 140). The pivotal issue on appeal is whether the claim for counsel fees may be maintained in a separate action or whether such claim must be asserted in the summary proceeding. The lease provided that "[i]f the lessee shall at any time be in default hereunder and the lessor shall incur any expense (whether paid or not) * * * in instituting an action or proceeding based on such default, the expense thereof to the lessor, including reasonable attorneys’ fees and disbursements, shall be paid by the lessee to the lessor, on demand, as additional rent.” In 379 Madison Ave. v Stuyvesant Co. (242 App Div 567, affd 268 NY 576), plaintiff landlord, after dispossessing the defendant and its undertenant in summary proceedings, brought action to recover the amount paid to its attorneys for services and disbursements in the litigation. The lease provided that if the tenant was in default and the landlord instituted a summary proceeding, the tenant would reimburse the landlord for the expense of reasonable attorneys’ fees and disbursements incurred by the landlord, and so long as the tenant remains a tenant, the