Herrick v. Debard

Plaintiff brought an action, seeking a declaratory judgment that defendant was not using her apartment as a primary residence. Defendant served and filed an answer, including affirmative defenses and counterclaims, one of which sought attorneys’ fees from the plaintiff. Plaintiff moved, inter alia, to strike the counterclaim for attorneys’ fees. This portion of plaintiff’s motion was denied by Supreme Court. This court, in Kips Bay Towers Assocs. v Yuceoglu (134 AD2d 164 [1st Dept 1987]), in a similar fact situation, involving an action for declaratory judgment by a landlord that the 167 premises in question were not the tenant’s primary residence, and construing a lease provision concerning attorneys’ fees identical to the lease provision in the instant case, held that attorneys’ fees were not recoverable by the tenant. The defendant in the instant case has, through counsel, notified the court that she "has decided not to oppose the appeal in this matter.” Concur — Murphy, P. J., Sandler, Sullivan and Rosenberger, JJ.