The facts are not in dispute, other than an issue of waiver in the eviction proceeding. Landlord does not include any property damage claim in its counterclaim and tenant's testimony that there was none is uncontroverted except for cigarette smoke.[FN1] The issues before the court are whether or not tenant is entitled to the return of all, some or none of her security deposit and is landlord now entitled to rent and attorney's fees.
The court has had an opportunity to review the entire eviction proceeding, including its notes, stipulation of the parties and the transcript of the February 28, 2018 hearing.{**61 Misc 3d at 258}
Issues of Law
1. Attorney's Fees
Defendant has asserted $500 of its $839.93 claim for attorney's fees expended in this [*2]defense of plaintiff's action and the assertion of defendant's counterclaim.
Under the long-standing "American Rule" attorney's fees are deemed "incidents of litigation" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]), and a prevailing party cannot recover its legal fees "except where authorized by statute, agreement or court rule." (See Gotham Partners, L.P. v High Riv. Ltd. Partnership, 76 AD3d 203, 204 [1st Dept 2010], lv denied 17 NY3d 713 [2011].) Thus in the absence of a contractual fee-shifting provision[FN2] or applicable statute providing for the recovery of attorney's fees each party to a civil action is generally responsible for its own legal fees (Hooper Assoc. v AGS Computers, 74 NY2d 487 [1989]).