Jerulee Co. v. SanchezJerulee Co. v. Sanchez
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered April 11, 2006, which, insofar as appealable, granted plaintiff‘s cross motion for summary judgment dismissing all of defendant tenant‘s counterclaims, affirmed, without costs. Appeal from order, same court and Justice, entered May 31, 2005, insofar as it denied the tenant‘s motion for partial summary judgment on his first and second counterclaims, unanimously dismissed, without costs, as superseded by appeal from the April 11, 2006 order.
In this declaratory judgment action by a landlord seeking rescission of a lease for a rent-stabilized apartment on the ground of fraud and mutual mistake, tenant Sanchez is not entitled to recover attorney‘s fees from plaintiff for successfully defending the action. Paragraph 20 (B), which gave the tenant the right to recover attorney‘s fees, specifically incorporates Real Property
The motion court properly dismissed the tenant‘s counterclaim for breach of the covenant of quiet enjoyment when he failed to demonstrate that the landlord‘s actions resulted in an actual or constructive eviction from the premises. In fact, the tenant remained in full possession of the leased premises at all pertinent times (see 127 Rest. Corp. v Rose Realty Group, LLC, 19 AD3d 172 [2005]).
The tenant‘s counterclaim for harassment was also properly dismissed, as it is well settled that the common law of New York does not recognize such a civil cause of action (see Hartman v 536/540 E. 5th St. Equities, Inc., 19 AD3d 240 [2005]). The statutory and regulatory provisions upon which the tenant relies for a cause of action for harassment are inapplicable to the case at bar.
The tenant has also failed to demonstrate that plaintiff engaged in the type of frivolous conduct defined in
McGuire, J., concurs in part and dissents in part in a memorandum as follows: In this action the landlord of a residential building sought to rescind the lease it had entered into with its tenant, appellant Sanchez. In its first cause of action landlord sought rescission of the lease on the ground of fraud by the defendants, Sanchez and Nizhny, with whom Sanchez had been residing in another apartment in the same building; the second cause of action sought rescission on the ground of mutual mistake. In addition to rescission, the landlord sought a warrant of eviction. Tenant eventually prevailed when Supreme Court granted his motion for summary judgment dismissing the complaint, and landlord has abandoned its appeal from the order
The lease includes a provision granting landlord the right to recover attorneys’ fees from tenant on account of tenant‘s failure to perform any covenant or agreement contained in the lease. Accordingly, tenant seeks to recover attorneys’ fees from landlord pursuant to the implied covenant of
Obviously, tenant‘s defense was successful. The issue, accordingly, is whether landlord‘s action to rescind the lease was one “arising out of the lease.” When an action brought by a landlord against a tenant rests on a claim by the landlord that the tenant has violated an obligation under the lease, the action unquestionably is one that “arises under the lease” (see e.g. Matter of Duell v Condon, 84 NY2d 773, 782-783 [1995]; Kuttas v Condon, 290 AD2d 492, 492-493 [2002]; Troy v Oberlander, 146 AD2d 460, 461-462 [1989]). In other words, an allegation by the landlord that the tenant breached the lease is a sufficient condition for the determination that the landlord‘s action is one that “arises under the lease.” But a sufficient condition, of course, is not necessarily a necessary condition. Thus, in Minick v Park (217 AD2d 489 [1995]), the landlord did not allege a violation of the lease by the tenant in its action for a judgment declaring that it was entitled to possession of the subject apartment for his own occupancy and ejectment of the tenant. The tenant, however, prevailed in the action because the landlord, by failing to give six months’ notice of termination of the lease, had defaulted under the lease (id. at 490). For this reason, this Court upheld the tenant‘s claim to attorneys’ fees under
In my judgment, if an action concerning the legality of a party‘s conduct under a lease is one that “arises under the lease,” so, too, is an action concerning the legality of the lease itself. More than logic supports the conclusion that an action by a landlord against a tenant that has as its central object the rescission
The one case the majority cites holds only that “a declaratory judgment action seeking a determination of whether or not the apartment was maintained as a primary residence” is “not an action . . . arising out of a lease of residential property” (Peck v Wolf, 157 AD2d 535, 536 [1990], lv denied 75 NY2d 709 [1990]). Even if that holding can be reconciled with the holdings in Duell and Cier Indus. Co. v Hessen (136 AD2d 145 [1988]), it hardly compels the conclusion that an action to rescind a lease is not an action “arising out of the lease.”
For these reasons, I would modify the orders appealed from to the extent of granting tenant‘s motion for partial summary judgment on his second counterclaim and remanding for a hearing on the amount of attorneys’ fees to which he is entitled, and denying landlord‘s cross motion for summary judgment dismissing the second counterclaim. As I agree with the majority in all other respects, I would otherwise affirm.