Tige Real Estate Development Co., Inc. v. Rankin-Smith

• Decision Date: 21 November 1996
• Docket Number: RANKIN-SMITH
• Citation: Tige Real Estate Development Co., Inc. v. Rankin-Smith, 650 N.Y.S.2d 114, 233 A.D.2d 227 (N.Y. App. Div. 1996)
• Parties: TIGE REAL ESTATE DEVELOPMENT COMPANY, INC., Plaintiff-Appellant, v. Pamela, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 114

650 N.Y.S.2d 114

233 A.D.2d 227

TIGE REAL ESTATE DEVELOPMENT COMPANY, INC., Plaintiff-Appellant, v. Pamela RANKIN-SMITH, et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Nov. 21, 1996.

Claude Castro, New York City, for Plaintiff-Appellant.

Ellen M. Coin, for Defendants-Respondents.

Before SULLIVAN, J.P., and ROSENBERGER, KUPFERMAN, WILLIAMS and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Harold Tompkins, J.), entered January 9, 1995, awarding defendants the principal sum of $414,059.40 in attorneys' fees, and bringing up for review an order, same court and Justice, entered January 4, 1995, which, inter alia, granted defendants' motion to confirm in part and reject in part the report of the Special Referee, and denied plaintiff's motion to reject the report, unanimously modified, on the facts, to reduce the principal sum awarded to $300,000, and otherwise affirmed, without costs. The appeal from the order is unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

Defendants' entitlement to attorneys' fees had been established as the law of the case, inasmuch as the only monetary relief actually sought in defendants' counterclaims was for such fees and, although not specifically mentioned in the decision, such fees were included in the order which was affirmed by this Court (171 A.D.2d 565, 171 A.D.2d 565). Therefore, it is unnecessary to reach plaintiff's argument that the lease provision, strictly construed, did not authorize attorneys' fees in the context of a declaratory judgment action. We note, however, that the attorney fee provision in the authority relied upon for this contention (Hall & Co. v. Orient Overseas Assocs., 84 A.D.2d 338, 446 N.Y.S.2d 59, affd 56 N.Y.2d 965, 453 N.Y.S.2d 680, 439 N.E.2d 395), allowing fees in cases of "default, re-entry, expiration and/or dispossess by summary proceedings or otherwise", thereby requiring specific affirmative action by the landlord, is narrower than the provision at issue here, which first refers to termination of the lease "by summary proceeding or otherwise" but then goes on to authorize attorneys' fees "in recovering possession of the demised premises", thus focusing, not on the procedural steps taken, but on the ultimate result. In addition, here the tenant, having been notified of its imminent default but not yet having been given formal notice of default since the time for...