O'Connell v. 1205-15 First Avenue Associates, LLC

28 A.D.3d 233, 813 N.Y.S.2d 378

Opinion

Order, Supreme Court, New York County (Louis B. York, J.), entered April 7, 2005, which, in an action by a tenant against his landlord to recover reasonable attorneys’ fees incurred in this and a prior action, denied tenant’s motion for summary judgment and, upon a search of the record, dismissed the complaint, unanimously affirmed, without costs.

The prior action was brought by landlord against tenant and sought use and occupancy, ejectment, damages for fraud, rescission of the lease based on fraud and a declaration that tenant’s “sweetheart lease” was void or voidable. Subsequent to landlord’s voluntary withdrawal of its causes of action for use and occupancy and ejectment, the remainder of the prior action was dismissed on tenant’s motion for summary judgment. Tenant then brought the instant action to recover his attorneys’ fees based on a lease clause providing that “[t]he successful party in a legal action or proceeding between Landlord and Tenant for non-payment of rent or recovery of possession of the Apartment may recover reasonable legal fees and costs from the other party.” The motion court dismissed the action on the ground that once landlord withdrew its causes of action for use and occupancy and ejectment, the prior action no longer sought any remedies under the lease, leaving neither party with a right to recover attorneys’ fees. We affirm on the different ground, mentioned but not relied on by the motion court, that the prohibition against the splitting of causes of action required plaintiff to seek attorneys’ fees within the action in which they were incurred, not a subsequent action (see Wavertree Corp. v 136 Waverly Assoc., 258 AD2d 392, 392 [1999], citing 930 Fifth Corp. v King, 42 NY2d 886 [1977]). Concur—Tom, J.P., Andrias, Marlow, Williams and McGuire, JJ.