Morningside Studios, Inc. v. Lucille Hotel Corp.

• Decision Date: 20 July 1972
• Citation: 334 N.Y.S.2d 735,70 Misc.2d 760
• Parties: MORNINGSIDE STUDIOS, INC., Landlord, v. LUCILLE HOTEL CORP., Tenant.
• Court: New York City Court

Page 735

334 N.Y.S.2d 735

70 Misc.2d 760

MORNINGSIDE STUDIOS, INC., Landlord, v. LUCILLE HOTEL CORP., Tenant.

Civil Court of the City of New York, New York County, Trial

Term, Part XX.

July 20, 1972.

Lehman, Rohrlich, Solomon & Heffner, New York City (George Pollack and Bernard K. Rothenberg, New York City, of counsel), for petitioner.

Philip M. Berman and Alan Federman, New York City, for respondent.

BENTLEY KASSAL, Judge.

This summary proceeding was instituted to recover rent due for the months of May and June and to recover as 'additional rent', counsel fees incurred in the prosecution of a prior summary proceeding against this tenant. The two months' rent was paid subsequent to the filing of the petition in this action, so that the monthly rent portion of this proceeding is no longer in issue. The question before the Court is whether counsel fees incurred in prior summary proceedings may be recovered in this summary proceeding.

The Appellate Term, First Department, has held that the reasonable value of attorney's fees for services in a prior summary proceeding may properly be included in the judgment awarded a landlord in a non-payment proceeding. 117--127 West 48th St. Corp. v. Mellar, 71 N.Y.S.2d 9 (1st Dept., Sup., App.T., 1947); also, Willoughby Midway, Inc. v. Nathan, N.Y.L.J., June 17, 1971, p. 19, Col. 7 (App.T., 1st Dept.)

It is the decision of this Court that the Court retains jurisdiction to determine such additional amount, even though the monthly rents due have already been paid. Indeed, it has been held in other situations that the failure to pay incurred counsel fees, designated as 'additional rent' in the lease, is a violation of a substantial obligation of the lease, for which the landlord is entitled to recovery in a summary proceeding. Cf. Barrow Realty Corp. v. Village Brewery Rest. Inc., 272 App.Div. 262, 70 N.Y.S.2d 545 (1st Dept., 1947); Stakser v. Rodriquez, 23 Misc.2d 954, 200 N.Y.S.2d 475 (App.T., 1st Dept., 1960); Estate of Ross v. Novod, 163 N.Y.S.2d 787 (Sup., App.T., 1st Dept., 1957).

The case at bar should be distinguished from Midboro Management v. Epperson, 39 Misc.2d 908, 242 N.Y.S.2d 160 (Civil Ct., N.Y.Co., 1963), which involved rent-controlled residential premises and, in any event, is not binding upon this Court. Another case cited by the tenant is inapposite since the landlord there no longer possessed title to the premises and the landlord-tenant relationship had ceased to exist (East Bronx Properties v. James, 200 Misc. 180, 103 N.Y.S.2d 535, Bronx, Mun.Ct.1951).

Moreover, if we failed to allow recovery in this proceeding, it may subsequently be held that any independent claim for this 'additional rent' constitutes an improper splitting of the landlord's cause of action. See Seventy-Second Street Properties, Inc. v. Woods, 67 Misc.2d 539, 324 N.Y.S.2d 339, 1971 (Civil Ct., N.Y.Co., Bell, J.); Columbia Corrugated Container Corp. v. Skyway Container Corp., 37 A.D.2d 845, 326 N.Y.S.2d 208 (2nd Dept., 1971).

There is a subsidiary problem presented by tenant: that in no event can there be an Order of eviction even if a Judgment in a Summary Proceeding does lie for such sum. This presents the Court with the necessity for defining this issue so that there shall be no ambiguity in this regard.

As a matter of business practice and policy, commercial leases designate certain tenant's obligations as 'additional rent' to enable the landlord to enforce them effectively and to proceed summarily against a tenant who defaults in this obligation. In fact, the lease herein describes the real estate taxes, sewer and water charges, assessments, vault and rental taxes, etc. (paragraph 3) as tenant's obligations and then proceeds to spell out that counsel fees in connection with such defaults shall be additional rent (paragraph...