herein matter, that paragraph further provided that "[I]n the event of a dispossess proceeding or
any other lawsuit arising out of this Lease, Tenant specifically agrees to pay Landlord[]
reasonable attorney's fees plus costs and disbursements [or] any such action" (Id.)
Initially, the Court notes that Defendant could not recover attorney's fees in the Summary
Proceeding because the Lease did not deem attorney's fees as "additional rent" (See Henry v.
Simon, 2009 NY Slip Op. 51369U, 2009 NY Misc. LEXIS 1638 [App. Term 9th & 10th Jud.
Dists. June 29, 2009]; Binghamton Housing Auth. v. Douglas, 217 AD2d 897, 630 NYS2d 144
(3d Dep't 1995); Acierno v. Faldich, 4 Misc 3d 98, 782 NYS2d 509 [App. Term 9th & 10th Jud.
Dists. 2004]; RPAPL § 741(5)). Defendant, however, is permitted to seek attorney's fees
from the Summary Proceeding in this small claims action, which were plead as a counterclaim,
notwithstanding the fact he did not pursue them at arbitration. However, inasmuch as Defendant
failed to substantiate the claim and/or submit time entries identifying the dates, amount of time
devoted and description of the legal services provided in the Summary Proceeding, an award of
attorney's fees is not justified.
Accordingly, it is hereby,
ORDERED, that judgment is awarded to Plaintiffs against Defendant in the amount of
$3,600, with interest from September 1, 2007, plus costs; and it is hereby further
ORDERED, that the counterclaim is dismissed.
This constitutes at the Decision and Order of the Court.
Dated: October 30, 2009
_________________________________
STEPHEN L. UKEILEY, J.D.C.
Decision will be published electronically
[*6]
Footnotes
Footnote 1: Neither party offered an