Excelsior 57th Corp. v. Winters

• Decision Date: 07 May 1996
• Citation: Excelsior 57th Corp. v. Winters, 641 N.Y.S.2d 675, 227 A.D.2d 146 (N.Y. App. Div. 1996)
• Parties: EXCELSIOR 57TH CORP., Petitioner-Appellant, v. Jack E. WINTERS, et al., Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 675

641 N.Y.S.2d 675

227 A.D.2d 146

EXCELSIOR 57TH CORP., Petitioner-Appellant, v. Jack E. WINTERS, et al., Respondents-Respondents.

Supreme Court, Appellate Division First Department.

May 7, 1996.

Stanley Margolies, for petitioner-appellant.

Andrea Jodi Lawrence, for respondents.

Before MURPHY, P.J. and WALLACH, ROSS, NARDELLI and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Appellate Term, First Department (Parness, J.P., and Glen, J.; McCool, J., dissenting), entered May 24, 1994, which modified the final judgment of Civil Court, New York County (James Grayshaw, J.), entered October 29, 1992, after nonjury trial, awarding petitioner-landlord $119,220.25, a judgment of possession, as well as attorneys' fees, by reducing petitioner-landlord's recovery by $9,695.63, representing payments by tenants, and vacating the award for petitioner-landlord's attorneys' fees and substituting therefor an award of attorneys' fees to respondents-tenants, unanimously modified, on the law and the facts, to vacate the award of attorneys' fees to respondents-tenants and to reinstate the award of attorneys' fees to petitioner-landlord, and otherwise affirmed, without costs.

The basic issue to be determined on this appeal is which party should be accorded the status of "prevailing party", thereby allowing recovery of attorneys' fees. We have previously stated that such a determination requires an initial consideration of the true scope of the dispute litigated, followed by a comparison of what was achieved within that scope (Solow v. Wellner, 205 A.D.2d 339, 340, 613 N.Y.S.2d 163,...