The petitioner's motion for an order granting it attorney's fees is denied.

Petitioner instituted this non-payment proceeding requesting a final judgment of eviction, awarding petitioner possession of the premises described as all rooms at 11A Jackson Court, Hempstead, New York. The apartment is subject to the Rent Stabilization Law of 1969, as amended. Further, petitioner demanded a money judgment against the respondents in the sum of $2,586.32 representing December 2006 and January 2007 rent plus late fees. Also in the notice of petition was a demand for a judgment of at least $950.00 for attorney's fees.

After the service of the petition, but prior to the return date, the respondents made a partial payment leaving the rent for January 2007 unpaid. When the respondents did appear in court on January 22, 2007, they were granted an adjournment to seek the assistance of the Volunteer Lawyer's Project, who now represents them. On the adjourn date the parties entered into a stipulation which provided for payment on or before February 9, 2007. The stipulation further provided that the petitioner could obtain a money judgment for non-payment, together with a judgment of possession and warrant upon a default by the respondents in paying the arrears.

The stipulation provided the following with respect to attorney's fees:

Petitioner reserves the right to make an application for legal fees and respondent [*2]reserves the right to oppose the same.

Paragraph 35 of the lease between the parties provides that the respondents are liable for attorney's fees as follows:

If the Tenant shall be in default under the terms of this lease with respect to the payment of rent and/or additional rent or shall otherwise be in default for failure to obey any agreement, promise or duty required of Tenant under the provisions of this agreement, and the Landlord shall be required to spend any money or become obligated to expend any money, including but not limited to reasonable attorney's fees in prosecuting of this lease, whether or not the Tenant is a party to said action or proceeding, such expense shall be deemed additional rent, collectable when the obligation therefor arises and enforceable, where Tenant is a party, in the action or proceeding in which the services are rendered; except that where Court approval is required by a Court of competent jurisdiction, recovery thereof shall be limited to the extent authorized by such Court.

In support of its motion for $950.00 in legal fees and costs the petitioner posits:

It is clear that several hours of legal work were performed on behalf of the Petitioner, including preparation of Notice of Petition, service of same, and two court appearances (plus a third appearance for the submission of the stipulation and discussion regarding legal fees, for which my office did not bill the Petitioner). The legal bill to Petitioner in this matter will ultimately exceed $590.00, as my office charges $350.00 for the preparation of a Notice of Petition and Petition, and $250.00 for each court appearance, plus fees to cover the costs of an index number and process server.

The respondents oppose this motion and assert that the petitioner is not entitled to attorney's fees since it was not the prevailing party. Respondents rely upon Babylon Village Equities v. Mitchell, 11 Misc 3d 84, 816 NYS2d 279 ( App Term, 9th & 10th Jud Dists 2006) which held that, notwithstanding any provision in the lease to the contrary, only a prevailing party is entitled to recover attorney's fees .

It is well settled that only a prevailing party is entitled to recover attorney's fees and that, to be considered the prevailing party, a party must be successful with respect to the central relief sought (Nestor v. McDowell 81 NY2d 410, 599 NYS2d 507[1993]; Fatsis v. 360 Clinton Ave. Tenants Corporation 272 Ad2d 571, 709 NYS2d 421 [2d Dept 2000]; Village of Hempstead 8 AD3d 476, [*3]778 NYS2d 519 [2d Dept 2004].

This Court is faced with the issue of deciding whether the petitioner qualifies as the prevailing party. The petitioner posits that it can be said to have prevailed, as the central relief sought was full payment of back rent, secured by a judgment and warrant in the event of default. It cites two cases to support its contention.In the first action, Sklar Living Trust v. Brownstein, 4 Misc 3d 136 A, 791 NYS2d 874 (1st Dept 2004), the Court awarded counsel fees to the petitioner after it obtained a default possessory judgment in the landlord's favor. The second case is Acierno v. Faldich, 4 Misc 3d 98, 782 NYS2d 509 (App Term, 9th and 10th Jud Dist, 2004) in which the plaintiff commenced a small claims action to recover attorney's fees after the plaintiff had been awarded a final judgment of possession in a summary proceeding. The Court found that the plaintiff prevailed on the central relief sought and therefore was entitled to attorney's fees pursuant to the lease.

However, in the case at bar, respondents did not vacate; rather, they paid the back rent pursuant to the stipulation and the petitioner was not awarded a judgment of possession. While the petitioner did obtain the rent due from the respondents, this Court finds that the petitioner did not prevail within the criteria set forth in Nestor v. McDowell, supra , and Babylon Village, supra . Inasmuch as the petitioner did not obtain the central relief sought, that is a final judgment of eviction awarding the petitioner possession of the premises, it is not entitled to attorney's fees. Accordingly, the petitioner's motion is denied.

The Court urges an appeal of this action as it seems to be an unsound policy to deny a petitioner attorney's fees in this situation.

So Ordered:

DISTRICT COURT JUDGE

Dated:April 12, 2007

CC:Ezratty, Ezratty & Levine

Thomas Smigelski, Esq.

SF/mp