Landlord Didn't Waive Right to Get Attorney's Fees

Landlord sued to evict tenant after tenant's lease ended. The court ruled for landlord. Landlord then sued tenant in a separate action for attorney's fees. Tenant's lease said that if landlord won an action relating to nonpayment of rent or recovering possession of the apartment, landlord was entitled to attorney's fees. Tenant asked the court to dismiss the attorney's fee claim because landlord didn't raise the issue in the nonpayment case. The court ruled against tenant. Tenant appealed and lost. The attorney's fee provision in the lease didn't say that these fees were recoverable as ''additional rent.'' So landlord couldn't claim them in the eviction case, and it was proper to start a separate court action. And because landlord was the prevailing party in the eviction case, he was entitled to an award of attorney's fees.

Acierno v. Aldich: NYLJ, 6/11/04, p. 31, col. 2 (App. T 2 Dept.; McCabe, PJ, Rudolph, Angiolillo, JJ)