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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Kumble v. Windsor Plaza Co., 161 A.D.2d 259 (1990)

Citation
Kumble v. Windsor Plaza Co., 161 A.D.2d 259 (1990)
Parent Document
Kumble v. Windsor Plaza Co., 161 A.D.2d 259 (1990)
Jurisdiction
New York (state)
Effective Date
1990-05-08

Full Text

2,057 chars
The only argument of any merit made by the landlord is that the trial court should not have compensated the tenant’s attorney’s for time spent in proving the value of their services, a so-called "fee on a fee”. No attempt is made by the landlord to show how much of the total fee award is made up of a fee on a fee; our own review indicates that it is probably not more than $75,000 inclusive of the hearing on remand. Be that as it may, we hold that it was not error to make allowance for a fee on a fee in the absence of argument by the landlord that he himself would not have been entitled to such an allowance under the parties’ lease had he prevailed, and, just as important, given the trial court’s finding, affirmed on the prior appeal, that the landlord’s position that the tenant was in violation of the lease was "ludicrous” on the merits and retaliatory in motive. While we do not decide that a prevailing tenant would be entitled to a fee on a fee under Real Property Law § 234 given a reciprocal lease provision *261that excludes it and/or a nonretaliatory eviction proceeding by the landlord (see, 313 W. 100th St. Tenants Assn. v Kepasi Realty Corp., 143 Misc 2d 566 [App Term, 1st Dept]), we do comment that there is nothing in Real Property Law § 234 itself that excludes a fee on a fee, and that persuasive if not binding authority strongly suggests that statutes creating a right to attorneys’ fees are served by its allowance (Matter of Fresh Meadows Med. Assocs. [Liberty Mut. Ins. Co.], 49 NY2d 93, 98-99). Although Fresh Meadows has been overruled by regulatory authority excluding a fee on a fee in the no-fault insurance context of that case (see, Hempstead Gen. Hosp. v Allstate Gen. Ins. Co., 106 AD2d 429, affd for reasons stated at App Div 64 NY2d 958), its rationale in other contexts, especially Real Property Law § 234, one purpose of which is to discourage unnecessary litigation "in th[e] hotly contested and emotional field” of landlord-tenant relations (Cier Indus. Co. v Hessen, 136 AD2d 145, 151), remains undiminished.