Jerulee Co. v. Sanchez

43 A.D.3d 328, 841 N.Y.S.2d 242

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 16, 2007
• Status: Published

Opinions

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered April 11, 2006, which, insofar as appealable, granted plaintiffs cross motion for summary judgment dismissing all of defendant tenant’s counterclaims, affirmed, without costs. Appeal from order, same court and Justice, entered May 31, 2005, insofar as it denied the tenant’s motion for partial summary judgment on his first and second counterclaims, unanimously dismissed, without costs, as superseded by appeal from the April 11, 2006 order.

In this declaratory judgment action by a landlord seeking rescission of a lease for a rent-stabilized apartment on the ground of fraud and mutual mistake, tenant Sanchez is not entitled to recover attorney’s fees from plaintiff for successfully defending the action. Paragraph 20 (B), which gave the tenant the right to recover attorney’s fees, specifically incorporates Real Property Law § 234, whereby a tenant’s right to such recovery is triggered only after successfully defending against a landlord’s action “arising out of the lease” (see Peck v Wolf, 157 AD2d 535 [1990], lv denied 75 NY2d 709 [1990]). Here, the action was not one to enforce a covenant or obligation of the lease or due to a violation of the lease; rather, it was to rescind the lease due to fraud and mutual mistake. Although the ultimate relief sought was a warrant of eviction, it is not the ultimate relief that determines whether or not a dispute arises out of the lease within the meaning of section 234, as the tenant contends. Rather, it is determined by whether the litigation is based upon a breach of the terms of the lease, which was not the case here.

The motion court properly dismissed the tenant’s counterclaim for breach of the covenant of quiet enjoyment when he failed to demonstrate that the landlord’s actions resulted in an actual or constructive eviction from the premises. In fact, the tenant remained in full possession of the leased premises at all pertinent times (see 127 Rest. Corp. v Rose Realty Group, LLC, 19 AD3d 172 [2005]).

The tenant’s counterclaim for harassment was also properly dismissed, as it is well settled that the common law of New York does not recognize such a civil cause of action (see Hartman v 536/540 E. 5th St. Equities, Inc., 19 AD3d 240 [2005]). The statutory and regulatory provisions upon which the tenant relies for a cause of action for harassment are inapplicable to the case at bar.

The tenant has also failed to demonstrate that plaintiff engaged in the type of frivolous conduct defined in 22 NYCRR 130-1.1 that would warrant the imposition of sanctions (see Nassau County v Incorporated Vil. of Roslyn, 218 AD2d 688, 690 [1995]). We have considered the tenant’s remaining arguments and find them without merit. Concur—Saxe, J.E, Friedman, Sweeny and Malone, JJ.