LIMITING THE RECOVERY OF LEGAL FEES IN HOUSING COURT

Sokolow v. NEUMANN-WERTH, 2018 NY Slip Op 28351 - NY: Appellate Term, 2nd Dept. 2018:

"Where a lease does not deem attorney's fees to be additional rent, a court entertaining a summary proceeding lacks subject matter jurisdiction to entertain a landlord's claim for attorney's fees (see RPAPL 741 [5]; Jacoby v Cabrera, 60 Misc 3d 136[A], 2018 NY Slip Op 51079[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Green v Weslowski, 53 Misc 3d 144[A], 2016 NY Slip Op 51568[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; Inland Diversified Real Estate Serv., LLC v Keiko NY, Inc., 51 Misc 3d 139[A], 2016 NY Slip Op 50613[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; Saunders St. Owners, Ltd. v Broudo, 32 Misc 3d 135[A], 2011 NY Slip Op 51459[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Henry v Simon, 24 Misc 3d 132[A], 2009 NY Slip Op 51369[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]; see also 172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Assn., Inc., 24 NY3d 528, 534 [2014]; Matter of Bedford Gardens Co. v Silberstein, 269 AD2d 445 [2000]).

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The provisions in the lease, as set forth in paragraph 23, limit landlord's right to recover attorney's fees to instances where the tenant's default leads to landlord's cancelling the lease, taking back the apartment, and deducting landlord's expenses, which include reasonable legal fees, from the rent received from the new tenant. "New York public policy disfavors any award of attorneys' fees to the prevailing party in a litigation [and] a provision in an agreement allowing the recovery of attorneys' fees that are incidents of litigation should be strictly construed" (Horwitz v 1025 Fifth Ave., Inc., 34 AD3d 248, 249 [2006] [internal quotation marks and citation omitted]; see 40-50 Brighton First Rd. Apts. Corp. v Henderson, 51 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Since the conditions in paragraph 23 upon which landlord may recover attorney's fees as "added rent" are not present in this holdover proceeding based on the termination of a month-to-month tenancy, where there was no default by tenants which prompted the cancellation of the lease or the taking back and rerenting of the apartment by landlord, the Civil Court lacked subject matter jurisdiction to entertain landlord's claims for attorney's fees in this summary proceeding (see Jacoby v Cabrera, 60 Misc 3d 136[A], 2018 NY Slip Op 51079[U]; Green v Weslowski, 53 Misc 3d 144[A], 2016 NY Slip Op 51568[U],*1; Inland Diversified Real Estate Serv., LLC v Keiko NY, Inc., 51 Misc 3d 139[A], 2016 NY Slip Op 50613[U], *2). Were the issue properly in the case, we would find, for the same reason, that landlord is not entitled to such fees."