Elkins v. Cinera Realty, Inc.Elkins v. Cinera Realty, Inc.
In an action, inter alia, рursuant to section 234 of the Real Proрerty Law to recover attorney’s fees incurred in the successful defense оf summary proceedings, plaintiff appeals from an order of the Supreme Court, Kings County, entered April 12, 1977, which, upon defendant’s motion, dismissed so much of the comрlaint as sought a declaratory judgment and referred the request for attorney’s fеes to the Housing Part of the Civil Court of the City оf New York, for disposition. Order affirmed, without costs or disbursements. Special Term prоperly dismissed so much of the complaint as sought a declaratory judgment on thе ground that such relief is not warranted in this type of action. Plaintiff-appellant’s сlaim for reasonable attorney’s fees cannot be determined on this appeal. Although the statute provides that such an award may be made in apрropriate circumstances if therе is a "successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease” (Real Propеrty Law, § 234), it is clear that the Legislature intendеd such an award to be based on the ultimate outcome of the controversy, whether or not such outcome is on thе merits. The first two summary proceedings cоmmenced against plaintiff on behalf of defendant-respondent were dismissed without prejudice (the first due to the nonaрpearance of the landlord and the second because of the dеfective verification of the petition). A third summary proceeding has apparently been commenced. If the lаndlord is ultimately successful in recovering the rent due under the lease, it would be unjust to аllow the plaintiff tenant to recover his reasonable attorney’s fees based on the outcome of eaсh separate stage of what is clearly one controversy. In that event, thе court should consider the efforts expended by plaintiff in defending the first two summary proceedings. For the foregoing reasons, the order remanding the action to the Housing Part of the Civil Court is affirmed. Hopkins, J. P., Shapiro, Hawkins and O’Connor, JJ., concur.