Chinatown Preserv. HDFC v Yu Hua Chen, 2010 NY Slip Op 50730(U) [27 Misc 3d 1213(A)]

renewed (attached herein with renewal as Exhibit H) permits an award of legal fees in a
summary eviction proceeding. Further, Real Property Law Section 234 permits respondent to
recover attorney fees and costs by way of counterclaim in another action or proceeding
commenced by petitioner—the method of relief elected herein by respondent.

20. Accordingly, respondent respectfully requests a determination by this Court, after of
hearing of attorney fees and costs incurred by respondent resulting from Holdover proceedings
commenced in April 2009 and discontinued by petitioner in June 2009.

(Affirmation of Fernandez, Mar. 5, 2010, � 19-20.) RPL § 234 provides that
when a lease contains a provision allowing for the recovery of attorney fees, there is an implied
"covenant by the landlord to pay to the tenant the reasonable attorneys' fees and/or expenses
incurred by the tenant . . . in the successful defense of any action or summary proceeding
commenced by the landlord against the tenant arising out of the lease." However, petitioner
discontinued the prior nonpayment petition, without prejudice, before respondents served an
answer. (Affirmation of Gee, Apr.1, 2010, ¶48.) A discontinuance of a nonpayment
proceeding without prejudice, before respondents respond, does not qualify as a "successful
defense." Thus, respondents' motion to amend respondents' answer to add a fifth counterclaim is
denied, and respondents' motion for [*11]summary judgment on
their fifth counterclaim is denied as academic.

For the foregoing reasons, petitioner's motion to dismiss or sever counterclaims is
GRANTED in regard to respondents' counterclaims for overcharge and fraud and DENIED in
regard to respondents' counterclaims for diminution of services and breach of contract.