failed to proffer any basis for the discovery, defendant cannot rely on outstanding discovery to
defeat plaintiff's motion for summary judgment. As such, plaintiff's motion for summary
judgment is granted.
Further, plaintiff is entitled to attorney's fees, as such fees are clearly provided for in the
Lease. Paragraph 9B of the Lease provides defendant with reasonable attorney's fees should he be
"required to bring any action or proceeding to enforce the terms of this lease agreement and/or to
recover for any of Tenant's defaults". RPL § 234 states that where a residential lease
conveys a right to recover attorney's fees incurred in any litigation arising out of a claimed breach
by the tenant of a lease covenant, "there shall be implied in such lease a covenant by the landlord
to pay to the tenant the reasonable attorney's fees and/or expenses incurred by the tenant as the
result of the failure of the landlord to perform any covenant or agreement". As such, plaintiff is
entitled to reasonable attorney's fees. However, since plaintiff has not submitted proof of such
fees, the determination of the amount shall be referred to a Special Referee, as detailed below.
Accordingly, it is
ORDERED that plaintiff's motion for summary judgment is granted. Plaintiff is granted
judgment against defendant on the the first and second causes of action in the amount of
$27,750.00, together with interest from the date of July 27, 2010, as calculated by the Clerk,
together with costs and disbursements, to be taxed by the Clerk upon submission of an
appropriate bill of costs; and it is further
[*5]
ORDERED that plaintiff's claim for attorney's fees is
hereby referred to a Special Referee to hear and determine pursuant to CPLR § 4317,