2015 NY Slip Op 50089

Citation: 2015 NY Slip Op 50089
Jurisdiction: New York (state)
Source: Official source
Original Source: https://www.nycourts.gov/reporter/3dseries/2015/2015_50089.htm ↗

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which the court determined that a final judgment of possession for the landlord should be
vacated. "The award of legal fees was based on a lease clause which purported to entitle
landlord to $250.00 if landlord commenced a summary proceeding predicate, inter
alia, on tenant's nonpayment of rent and a total of $500.00 if the proceeding was
brought to judgment. "However, notwithstanding any provision in the lease to the
contrary, only a prevailing party is entitled to recover attorney's fees [ see Nestor
v. McDowell, 81 NY2d 410, 415-416, 599 N.Y.S.2d 507, 615 N.E.2d 991[1993];
Village of Hempstead v. Taliercio, 8 AD3d 476, 778 N.Y.S.2d 519 [2004]". In that case,
the landlord did not prevail on the merits was respect to the central relief sought because
there was no possessory judgment for any rent arrears.

The standard rule of law of excessive and unenforceable penalties remains
identical for commercial property as shown in Pryamid Centres and Co., v. Kenny Shoe
Corp., supra.; additionally, a late charge provision in a lease which awarded
365% per annum penalty was found to be "unreasonable and confiscatory in nature" and
thus unenforceable (Sandra's Jewel Box Inc. v. 401 Hotel, L.P., 273 AD2d 1, 708
N.Y.S.2d 113 (1st Dep't 2000)); a late fee of 10% of monthly rental amount was
disallowed because "imposition of a fixed percentage of rent, without proof of actual
costs or expenses incurred by the landlord, is unconscionable as it is disproportionately
onerous and confiscatory in nature" (North Clinton Associates v. Rehman, ISLT 179-11,
NYLJ 1202482550604 at 1 Dist., SUF, decided February 14, 2011).; a lease provision
which prohibited the tenant from asserting a "defense to any action or proceeding," held