930 Fifth Corporation v. King

• Decision Date: 14 June 1977
• Citation: 930 Fifth Corporation v. King, 397 N.Y.S.2d 788, 42 N.Y.2d 886, 366 N.E.2d 875 (N.Y. 1977)
• Parties: , 366 N.E.2d 875 930 FIFTH CORPORATION, Appellant, v. Wilma V. KING, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 788

397 N.Y.S.2d 788

42 N.Y.2d 886, 366 N.E.2d 875

930 FIFTH CORPORATION, Appellant, v. Wilma V. KING, Respondent.

Court of Appeals of New York.

June 14, 1977.

Lewis M. Isaacs, Jr., Herman Jervis and Donald L. Newborg, New York City, for appellant.

Jacob W. Friedman, New York City, for respondent.

MEMORANDUM.

The order of the Appellate Division is affirmed, with costs. The plaintiff lessor and the defendant lessee entered into an agreement for the rental of a certain apartment in a building owned by the plaintiff. Paragraph 30 of the lease provides that "the Lessor shall have the right to re-enter the apartment and to remove all persons and personal property therefrom, either by summary dispossess proceedings, or by any suitable action or proceeding at law or in equity * * * (d) * * * if the Lessee shall default in the performance of any covenant or provision hereof". In paragraph 15 the lessee "covenants to obey all such (house) rules and see that they are faithfully observed", and finally, the lease provides that "if the Lessee shall at any time be in default hereunder and the Lessor shall incur any expense (whether paid or not) * * * in instituting any action or proceeding based on such default, the expense thereof to the Lessor, including reasonable attorneys' fees and disbursements, shall be paid by the Lessee to the Lessor, on demand, as additional rent."

In a prior summary proceeding the defendant was found to have willfully violated a house rule restricting the harboring of pets on the premises (40 A.D.2d 140, 338 N.Y.S.2d 773, app. dsmd. 31 N.Y.2d 1046, 342 N.Y.S.2d 71, 294 N.E.2d 856). No claim for attorney's fees was raised in that proceeding. By this separate action the plaintiff now seeks to recover reasonable attorney's fees incurred in that summary proceeding pursuant to the above lease provision.

The clauses of the lease are interdependent. The lessee covenants to obey the house rules. The right to re-enter and to remove the tenant arises on default of any covenant; and default by the lessee renders him liable for reasonable attorney's fees on demand. All these facets of the lease are interrelated and constitute but separate integral parts of the whole. The lease entails a single obligation which thus requires the plaintiff to assert its entire claim in one action. Failure to make a claim for attorney's fees in the initial summary proceeding results in the splitting of a cause of action which is prohibited (Century Factors v. New Plan Realty Corp., 41 N.Y.2d 1040, 396 N.Y.S.2d 179, 364 N.E.2d 843, wherein it was stated that ...