Peachy v. Rosenzweig

Order of the Appellate Term of the Supreme Court, First Department (Parness, J. P., Miller and McCooe, JJ.), entered June 30, 1993, which affirmed an amended final judgment of the Civil Court, New York County (Peter Wendt, J.), entered on or about May 19, 1992, granting petitioners a possessory judgment for the sum of $22,236 less a $4,825.21 rent abatement awarded to respondents for a total of $17,410.79, and a plenary judgment for the 302 sum of $44,472, and which affirmed an order of said court and Judge, entered on or about June 17, 1992, which denied petitioners’ motion to resettle the judgment to include prejudgment interest and attorneys’ fees and denied respondents’ request for attorneys’ fees, unanimously modified, on the law and the facts, and the matter remanded for calculation of prejudgment interest on the petitioner’s possessory judgment of $22,236, and determination of an appropriate award of petitioners’ attorneys’ fees, without costs. In this non-payment possessory proceeding, we find that the petitioner landlord has obtained the status of a “prevailing party” in the underlying litigation, based upon the fact that, after ten days of trial, during which the tenants interposed thirteen affirmative defenses, the landlord obtained judgment for nearly $62,000, including a possessory judgment, whereas, tenants were only successful on one affirmative defense for a breach of warranty and awarded approximately $4,800 (see, Solow v Wellner, 205 AD2d 339, 340-341, Iv granted 207 AD2d 1045). We therefore remand for calculation of pre-judgment interest with respect to the possessory judgment of $22,236, pursuant to CPLR 5001 (a) (Delulio v 320-57 Corp., 99 AD2d 253, 254), and calculation of an appropriate award of petitioners’ attorneys’ fees. Concur—Rosenberger, J. P., Ellerin, Rubin, Ross and Tom, JJ.