No ‘Prevailing Party' in Pet Case

Landlord sued to evict tenants for violating a ``no pet'' clause in their lease. Tenants claimed landlord gave up the right to evict tenant by not objecting to the pet within three months. The court ruled against landlord and dismissed the case. Landlord appealed. The appeals court ordered a new trial, finding that tenants must prove that landlord waived the ``no pet'' clause by knowingly permitting them to keep the pet for at least three months without objection. Tenants moved out before any trial began. Landlord then asked for attorney's fees, claiming that it had prevailed on the merits of the case. Tenants claimed there hadn't been a trial and asked for one. The court ruled that a trial was now unnecessary and ordered a hearing to determine the amount of landlord's attorney's fees. Tenants appealed and won. Since there was no judgment or other resolution of the case, neither landlord nor tenant was a ``prevailing party'' entitled to attorney's fees. The fact that tenants moved out didn't prove that landlord had won the case on the merits.

90th Realty Co. v. Scolnik: NYLJ, p. 33, col. 6 (12/23/96) (App. T. 1 Dept.; Parness, JP, McCooe, Freedman, JJ)