Smith v. IG Second Generation Partners, L.P.

Judgment, Supreme Court, New York County (Walter B. Tolub, J), entered November 1, 2004, in favor of plaintiff tenant and against defendants landlords in the amount of $88,703.06, consisting of a refund of unlawfully charged rent in the amount of $39,380.17 as directed in a Division of Housing and Community Renewal (DHCR) fair market rent appeal order, prejudgment interest on the latter amount from the date of the Rent Administrator’s order in the amount of $34,539.05, and attorneys’ fees in the amount of $14,783.84, unanimously affirmed, with costs. Defendants’ failure to timely challenge plaintiffs use of CPLR 3213 to enforce DHCR’s order precludes our consideration of such challenge (see P. Ballantine & Sons v Boston Celtics Basketball Club, 36 AD2d 914 [1971]). Because plaintiff was obliged to commence a plenary action to enforce DHCR’s order, attorneys’ fees and interest were authorized (see Paganuzzi v Primrose Mgt. Co., 268 AD2d 213 [2000]), and, under the circumstances, plaintiff was not obliged to offset her recovery by means of a rent abatement prior to commencing a plenary action (see Msibi v JRD Mgt. Corp., 154 Misc 2d 293 [1992]). Nor was the methodology used to compute attorneys’ fees improper (see Matter of New York Convention Ctr. Dev. Corp. [Recycling for Hous. Partnership], 234 AD2d 167 [1996]). We have considered defendants’ remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Sullivan, Nardelli and Williams, JJ.