130 St. Marks Place LLC v. Hines

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 17, 2017
• Docket: 2017 NYSlipOp 50214(U)
• Status: Published

Opinion

130 St. Marks Place LLC, Petitioner-Appellant,

against

Rafael Hines, Respondent-Respondent.

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), dated February 19, 2016, which granted respondent's motion for attorney's fees as a prevailing party in a holdover summary proceeding.

Per Curiam.

Order (Jean T. Schneider, J.), dated February 19, 2016, affirmed, with $10 costs.

We sustain the grant of respondent's motion for attorneys' fees, albeit for reasons slightly different from those stated by Civil Court. In the particular circumstances at issue, where nearly one year has passed since the discontinuance of the holdover proceeding and no new proceeding was commenced by petitioner to determine the merits of its possessory claim, the only reasonable conclusion is that petitioner abandoned the matter and no longer contemplates suit on the underlying merits of that claim (see Park South Associates v Essebag, 126 Misc 2d 994 [1984]; N.V. Madison v Saurwein, 103 Misc 2d 996 [1980]). In this context, respondent is entitled to his reasonable attorneys' fees, since petitioner should not be permitted to postpone indefinitely the "ultimate outcome" of the lawsuit, effectively denying respondent attorneys' fees (see Centennial Restorations Co. v Wyatt, 248 AD2d 193, 197 [1998]).

We have considered and rejected petitioner's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 17, 2017