Chechak v. Hakim

269 A.D.2d 333, 703 N.Y.S.2d 915, 2000 N.Y. App. Div. LEXIS 2216

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 29, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered March 5, 1999, awarding plaintiff tenant damages against defendant landlord with interest, costs and disbursements, and bringing up for review an order, entered February 24, 1999, which, in an action to enforce a Division of Housing and Community Renewal (DHCR) fair market rent appeal order directing a refund of excess rent, upon the parties’ respective motions for summary judgment, insofar as appealed from, awarded the tenant the principal amount of the excess rent found by DHCR without offset for alleged rent arrears, awarded the tenant prejudgment interest on the excess rent from the date of the Rent Administrator’s order, and awarded the tenant her reasonable attorneys’ fees to be assessed after a hearing, unanimously affirmed, without costs. Appeal from the aforementioned order unanimously dismissed, without costs, as subsumed in the appeal from the above judgment. Appeal from order, same court and Justice, entered August 3, 1999, which denied the landlord’s motion to reargue the order of February 24, 1999, unanimously dismissed, without costs, as taken from a nonappealable order.

A tenant compelled to bring a plenary action to enforce a fair market rent appeal order is entitled to attorneys’ fees under Real Property Law § 234 and prejudgment interest under CPLR 5001 (a) computed from the date of the Rent Administrator’s order (Paganuzzi v Primrose Mgt. Co., 268 AD2d 213). The landlord’s argument that it is entitled to an offset for the amount of rent the tenant withheld in an effort to recoup the DHCR award was first raised in its motion for reargument, and, since no appeal lies from an order denying reargument (Deshler v East W. Renovators, 259 AD2d 351), the issue is not preserved for appellate review (see, Mount Vernon Fire Ins. Co. v William & Georgia Corp., 194 AD2d 366). In any event, it is clear that the tenant withheld rent not in an attempt to recoup the DHCR award but rather in connection with two rent strikes. Concur — Williams, J. P., Wallach, Saxe and Buckley, JJ.