Anello v. Fiedler

Anello v Fiedler (2021 NY Slip Op 51168(U)) [*1] Anello v Fiedler 2021 NY Slip Op 51168(U) [73 Misc 3d 139(A)] Decided on November 26, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on November 26, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ 2020-740 K C Joseph Anello, Respondent, against Paul Fiedler, Appellant. William E. Leavitt, for appellant. Stern & Stern, Esqs. (Pamela Smith of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Hannah Cohen, J.), dated December 5, 2019. The order denied tenant's motion for attorney's fees in a holdover summary proceeding. ORDERED that the order is affirmed, without costs. Landlord commenced this owner's use holdover proceeding in September 2017. By order dated February 5, 2018, the Civil Court granted, without prejudice, tenant's motion to dismiss the petition for lack of personal jurisdiction. By order dated July 5, 2019, a second owner's use proceeding, commenced by landlord shortly after the dismissal of this proceeding, was discontinued because landlord was unable at that time to meet the heightened requirements triggered by tenant turning 62 years old over a year after the commencement of that proceeding (see Rent Stabilization Code [9 NYCRR] §§ 2520.6 (p); 2524.4 [a] [2]). Tenant then moved in this proceeding for an award of attorney's fees claiming that he was ultimately the prevailing party in this proceeding by virtue of the discontinuance of the subsequent proceeding and, thus, entitled to attorney's fees pursuant to the parties' lease. The September 1, 1994 lease that tenant attached to his motion for attorney's fees does [*2]not contain an attorney's fee provision. Therefore, tenant failed to demonstrate his prima facie entitlement to recover attorney's fees in this proceeding (see Flemming v Barnwell Nursing Home & Health Facilities, Inc., 15 NY3d 375 [2010]). Consequently, there is no basis to reverse the order and grant tenant's motion. We reach no other issue. Accordingly, the order is affirmed. TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 26, 2021