As a part of their counterclaim, the tenants also seek the recovery of legal fees. Their claim for legal fees poses a unique question. The attorney for the tenants is their father and father-in-law. The attorney for the tenants testified as to his experience as an attorney; as to the number of hours spent in this matter; as to his customary fees, and as to the fact that he had advised his daughter and son-in-law, the tenants herein, that he did not expect them to pay any fees to him but would look to recovery of the legal fees from the landlord.
Legal fees may be recovered by a successful tenant in a summary proceeding either by the express contractual arrangement set forth in the lease or under the implied authority of Real Property Law § 234.
There are two concepts which support the recovery of legal fees in a summary proceeding. Where the lease provides that the successful party is entitled to be reimbursed for legal expenses incurred by him in the prosecution of a claim or counterclaim or a defense thereto, the successful party may seek to recover the legal expenses incurred; but only after the fees and related expenses have been paid. This concept views the obligation to pay the legal fees as a contract of indemnity whereunder the party who has incurred and paid the legal fees is entitled to reimbursement. (379 Madison Ave. v Stuyvesant Co., 242 App Div 567, affd 268 NY 576.) On the other hand, where the lease provides, simply, that the successful party has the right to collect reasonable fees and expenses incurred, then the party seeking the legal fees may make demand therefor as soon after the obligation for the fees is incurred, whether or not payment of the fees has been made; and such legal fees may be recovered in the underlying summary proceedings. (Columbia