Citation Numbers: 19 Misc. 3d 819, 855 NYS2d 335
Judges: Tolub
Filed Date: 3/31/2008
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
This motion raises the novel question as to whether an attorney may recover fees and costs under Real Property Law § 234 for successfully prevailing in an action involving Section 8 housing tenants. By this motion, plaintiffs move for an order granting their attorney a total of $15,923.89 in attorneys’ fees and costs,
History
The plaintiffs in this action are all Section 8 rent-stabilized tenants. In 2005, defendant landlords, seeking to opt out of the Section 8 program, began making demands for the balance of the rents which had been subject to federal subsidization.
Plaintiffs initially moved for, and received from this court, a preliminary injunction which acted to stay all of the nonpayment proceedings which had been commenced against them by their respective landlords (see notice of motion, exhibit A, Ortiz v Five Seven Naught, Apr. 18, 2006). Less than six months later, in an unrelated action, the Appellate Division, First Department, issued a decision holding that a landlord accepting Section 8 subsidies from a rent-stabilized tenant could not opt out of the federal program and terminate the tenant’s existing lease (Rosario v Diagonal Realty, LLC, 32 AD3d 739 [1st Dept 2006], affd 8 NY3d 755 [2007], cert denied — US —, 128 S Ct 1069 [2008]). Based on the Appellate Division’s Rosario holding (32 AD3d 739 [2006]), this court, in January of 2007, issued a final order and judgment in the instant case granting complete relief to plaintiffs (see notice of motion, exhibit B). This motion seeking attorneys’ fees followed.
Discussion
As previously noted by this court, the federally created Section 8 program provides landlords with rental subsidies for qualified tenants occupying an approved housing unit (see Housing and Community Development Act of 1974, 42 USC §§ 1437-1440). In New York City, the Section 8 program is administered by the New York City Housing Authority and the New York City Department of Housing Preservation and Development, both of which act as Public Housing Administrators for the United States Department of Housing and Urban Development (HUD).
Landlords, under the federal statute, possess the ability to choose whether they want to continue participating in the Section 8 program (see 42 USC § 1437f [d] [1] [B] [ii]). However, under New York law, once a landlord decides to accept a Section 8 subsidy from a rent-stabilized tenant, the acceptance of the Section 8 subsidy becomes a term and condition of the rent-stabilized lease, thereby mandating the inclusion of the same terms and conditions in all subsequent renewal leases (see Rosario, 8 NY3d 755, 761-762 [2007]; Rent Stabilization Code [9 NYCRR] § 2522.5 [g] [1]). Plaintiffs in this case thus argue that
Reciprocal by nature,3
Furthermore, unlike a general rent-stabilized or non-rent-stabilized lease, a Section 8 lease requires the inclusion of a
. With respect to attorneys’ fees, plaintiff specifically seeks $1,025.50 from defendant Five Seven Naught; $4,119.50 from defendant KVEST; $5,526.50 from defendant 530 East; $3,322 from defendant Realty; and $2,796.50 from defendant 550 Realty Heights. Plaintiff seeks costs in the amount of $33.13 from each of defendants KVEST, 530 East, and Realty Heights, and seeks an additional $60 in costs from defendant Realty.
. The court notes that this motion does not seek attorneys’ fees or costs from defendant E. Julio Gallo Realty, which immediately settled the action after service of the complaint, and 770 Saint Marks Place, which did not request attorneys’ fees in the nonpayment cases brought against plaintiffs Latasha Jones, Geraldine Bruce, and Denise Gil (see notice of motion at 2).
. In pertinent part, Real Property Law § 234 provides as follows: “Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant” (emphasis added).
. The construction of section 234 has allowed courts to conclude that where the landlord is deemed to be the prevailing party, entitlement to attorneys’ fees may be warranted (see e.g. Elkins v Cinera Realty, 61 AD2d 828 [2d Dept 1978]; Allerand, LLC v 233 E. 18th St. Co., LLC, 19 AD3d 275 [1st Dept 2005]; Aijaz v Hillside Place, 3 Misc 3d 754 [Civ Ct, Queens County 2004], affd as mod 8 Misc 3d 73 [App Term, 2d Dept 2005], affd in part, revd in part 37 AD3d 501 [2d Dept 2007]).