Tenant Gets Attorney's Fees After Defeating Breach-of-Lease Claim

Landlord sued to evict tenant for breach of lease based on unauthorized alterations to the apartment. The trial court ruled for tenant and dismissed the case. The court found that the alterations had been authorized, and awarded tenant attorney's fees based on a finding that the proceeding was retaliatory. Landlord appealed, and the appeals court revoked the attorney's fees award.

Tenant then appealed and won. The higher appeals court reinstated the attorney's fee award, finding that tenant was entitled to recover attorney's fees under Real Property Law Section 234 where, as here, the lease contained a provision that "any rent received by landlord for the re-renting shall be used first to pay landlord's expenses and second to pay any amounts tenant owes under this lease. Landlord's expenses include the costs of getting possession and re-renting the apartment, including...reasonable legal fees, brokers fees, cleaning and repairing costs, decorating costs, and advertising costs." One judge disagreed with the ruling, noting that tenant's lease contained only a provision for offset of rents collected in the event of a re-renting, and not an attorney's fee provision. 

Graham Court Owner's Corp. v. Taylor: 978 NYS2d 213, 2014 NY Slip Op 00311 (App. Div. 1 Dept.; 1/21/14; Sweeny, JP, Renwick, Moskowitz, DeGrasse [dissenting], Gische, JJ)