4220 Broadway Associates v. Perez

187 Misc. 2d 602, 723 N.Y.S.2d 816, 2000 N.Y. Misc. LEXIS 602

Opinion

OPINION OF THE COURT

Per Curiam.

Order entered December 22, 1999 affirmed, with $10 costs.

Civil Court properly vacated the final judgment and warrant in this nonpayment proceeding upon tenant’s tender of all outstanding arrears (see, Parkchester Apts. Co. v Scott, 271 AD2d 273). Landlord’s election to first apply tenant’s tender toward the nonpossessory judgment for attorneys’ fees, thereby creating a “shortfall” in the amount of tenant’s tender, does not dictate a contrary result. This course of action would effectively circumvent our holding in Silber v Schwartzman (150 Misc 2d 1) that attorneys’ fees do not constitute additional rent in the context of rent regulated tenancies and may not serve as the predicate for an eviction.

McCooe, J. P., Davis and Suarez, JJ., concur.