Tenant Seeks Attorney's Fees After Case Discontinued

Landlord sued to evict tenant for creating a nuisance. Landlord claimed that disturbing noises came from a ceiling fan in tenant's apartment. While the case was pending, tenant replaced the fan and the court granted landlord's request to discontinue the proceeding. The court also severed tenant's counterclaim for attorney's fees and expert witness fees, stating that tenant could start a separate court action against landlord if she wanted to pursue those claims. Tenant asked the court to set aside that portion of its order that severed her counterclaim. The court ruled against tenant, who appealed and won. New York doesn't have a mandatory rule on counterclaims, and since the ultimate outcome of the case concerned the fan-noise issue, the housing court should have ruled on tenant's claim for attorney and expert witness fees.

Forest Hills South Apts., LLC v. Lynch: 42 Misc.3d 148(A), 2014 NY Slip Op 50398(U) (App. T. 2 Dept.; 3/5/14; Pesce, PJ, Aliotta, Solomon, JJ)