Galicia v. Rota Holding Corp. 2

57 A.D.3d 293, 868 N.Y.2d 525

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 2008
• Status: Published

Opinion

Not only does the lease in question expressly provide for reciprocal attorney fees, but section 234 provides that any residential lease entitling a landlord to seek attorney fees implies a reciprocal covenant requiring the landlord to compensate a successful tenant for such fees and expenses (see Cier Indus. Co. v Hessen, 136 AD2d 145, 150 [1988]). The statute thus applies to the substantial attorney fees incurred in this case because defendant landlord would have been entitled to such fees had it been successful in a similar action against plaintiff tenant for breach of the lease. Moreover, section 234 is applicable to court proceedings in which a party to an administrative proceeding before the Division of Housing and Community Renewal seeks to enforce, modify or vacate that agency’s determinations, as in the proceedings herein (see Chechak v Hakim, 269 AD2d 333 [2000]). Plaintiff has not waived his right to these fees (see Dowling v Yamashiro, 116 Misc 2d 86, 89 [1982]), and an avenue for this relief would even be available in a plenary action (see Calce v Futterman, 235 AD2d 343 [1997]). Concur — Andrias, J.P., Saxe, Sweeny, Catterson and Moskowitz, JJ. [See 2007 NY Slip Op 30725(U).]