Tenant Gets Attorney's Fees After Landlord Discontinues Eviction Case

Landlord sued to evict tenant for creating a nuisance. Landlord later discontinued the case without prejudice in order to avoid a court-ordered traverse hearing based on tenant's claim of improper service of court papers. The court later granted tenant's request for attorney's fees. Landlord appealed and lost. The trial court properly found that tenant was the prevailing party in the discontinued case. Although there was no ruling on the merits, landlord didn't start a new eviction proceeding based on nuisance until 11 months later, and only after tenant requested attorney's fees. Given the lack of any explanation for the extended period of inactivity, tenant was the prevailing party in the first case, whether or not such outcome was on the merits.

Murray House Owners Corp. v. Welter: 64 Misc.3d 129(A), 2019 NY Slip Op 51013(U) (App. T. 1 Dept.; 6/21/19; Ling-Cohan, JP, Gonzalez, Cooper, JJ)