In Morningside Studios v Lucille Hotel Corp. (70 Misc 2d 760), a tenant in a summary proceeding was called upon to pay legal fees to the successful landlord under language in the lease which clearly created a contract of indemnity, despite the fact that the landlord’s attorney stated that he did not “expect to look to the landlord for payment” (p 763). The obligation of the losing party to pay legal fees must apply equally or with even greater force where the lease creates a liability therefor or as soon as the fees are incurred. To hold otherwise would deny to the parties the right to enter into a contingency arrangement for the payment of their legal expenses. And, contingency arrangements for the payment of legal fees are valid and enforceable. (Gair v Peck, 6 NY2d 97; 7 NY Jur 2d, Attorneys at Law, § 137.)
Though there will be a partial judgment for rent due to the landlord, the tenants, having interposed a successful counterclaim, an award of attorney’s fees will be made to them. Notwithstanding the contractual arrangement between the parties or their rights under Real Property Law § 234, the amount of legal fees to be awarded is to be determined by the court. Despite the experience and skill of both attorneys in these proceedings, the court, taking into consideration the amounts involved, the nature of the proceedings and the difficulties of prosecuting and defending them, fixes the award to the tenants for legal fees in the amount of $300.