The Court of Appeals in Hooper has an exacting test which requires a finding of unmistakable intent to waive the American Rule. The Hooper standard requires more than an inference of what the parties meant. It requires a specific written clause of having an unmistakable intent to waive the American Rule. Without this we are unable to award attorney's fees to the prevailing party.
Defendant asserts the initial written lease between the parties gives a basis for its claim. The language can be found in paragraph 5 on page 9 of exhibit C as follows:
"5. EVICTION: If Management terminates the lease agreement, Management shall have the right to repossess the apartment and cause the Resident to vacate the apartment in the manner provided by law. If Management is forced to evict Resident, Resident shall pay Management the expense incurred in obtaining possession of the apartment and all other damages sustained by Management, including attorneys' fees, to the extent permitted by law and the USDA, RD's regulations."
[1] The court finds this language unpersuasive and not specific enough to be applied to post eviction proceedings or to meet the Hooper criteria. The court will not broaden the{**61 Misc 3d at 259} language to cover all lawsuits between the parties but only the initial lawsuit to enforce defendant's rights under the original lease. Accordingly, attorney's fees are denied.
2. Security Deposit
[2] Plaintiff is entitled to a full return of her security deposit as no damage setoff is alleged by defendant. The key issues which the court must decide, however, are (1) whether or not a counterclaim for rent can be asserted against a claim for a security deposit return, or (2) whether it was waived in the original eviction proceeding.