Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Sabrina B. Kraus, J.), entered November 17, 2006. The final judgment, entered upon an order of the same court granting landlord's motion for summary judgment and for dismissal of tenant's counterclaims, awarded landlord possession and the sum of $19,006.94, and dismissed tenant's counterclaims in a nonpayment summary proceeding.

Final judgment reversed without costs, so much of the underlying order as granted the branch of landlord's motion seeking summary judgment with respect to its petition vacated, said branch of landlord's motion denied, and matter remanded to the court below for all further proceedings on the petition.

Landlord commenced this nonpayment proceeding seeking to recover arrears in rent for the period from July 2004 through February 2006. In the petition, landlord alleged that tenant's monthly rent was $354 and that tenant owed landlord a total of $16,362.44, which included a charge of $187.50 for additional rent. Tenant answered and subsequently filed "amended counterclaims" against landlord as well as Tracy Forrest, attorney for landlord, and Teresa Williams and Damaris Muniz, managers of Farragut Houses, seeking to recover, inter alia, the costs and disbursements he incurred in defending against four allegedly wrongful nonpayment proceedings previously brought against him by landlord. The record contains no affidavit of service establishing that said individuals were served.

Landlord thereafter moved for an order granting it summary judgment and dismissing [*2]tenant's counterclaims. In support of the motion, landlord submitted an affidavit from Teresa Williams in which she stated that numerous summary proceedings had been commenced against tenant, starting in December 1988 just after the inception of his tenancy (and including five between 2001 and 2006), and that tenant currently owes landlord the total sum of $19,006.94 in rental arrears for the months of May 2002 through October 2006. In opposition to the motion, tenant argued that landlord's commencement of the four prior wrongful nonpayment proceedings against him since 1998 had caused him to incur substantial expenses for costs and disbursements and that the petition stated that landlord was seeking to recover monthly rent of $354 for the months of July 2004 through February 2006, which totals $7,080, not $16,174.94 as stated by landlord in the petition. The Civil Court granted landlord's motion for summary judgment, awarded landlord possession and the sum of $19,006.94, and dismissed tenant's counterclaims.

The petition states that landlord is seeking to recover monthly rent of $354 for the months of July 2004 through February 2006. While the petition also states that the total arrears owed by tenant for said period of time were $16,174.94, a computation of landlord's figures set forth in the petition (i.e., $354 x 20 months) establishes that only $7,080 is allegedly due for that period. Since landlord did not move for leave to amend the petition to reflect that it was seeking to recover rent from May 2002 through February 2006 (only some of which was in the amount of $354 per month) or otherwise explain the discrepancies, the Civil Court improvidently exercised its discretion in sua sponte, in effect, amending the petition and, thus, improperly granted that branch of landlord's motion seeking summary judgment and awarded landlord possession and the sum of $19,006.94.

However, the Civil Court properly dismissed tenant's counterclaims. Insofar as the counterclaims were asserted against Tracy Forrest, Teresa Williams and Damaris Muniz, said individuals were not served and, as such, the court below lacked jurisdiction over them. In addition, tenant did not obtain leave of court to join any third parties (see CPLR 401). Tenant's counterclaims against landlord for the costs and disbursements he incurred in the prior nonpayment proceedings should have been asserted in the prior proceedings (see Madison County Constr. Co., Inc. v State of New York, 177 Misc 777 [1941]; Weber Peuthert Co. v Leventhal, 161 NYS 404 [1916], mod on other grounds 176 App Div 899 [1916]). Further, while tenant also sought the legal fees he allegedly incurred in said proceedings, it is well settled that a party must pay his or her own attorney's fees unless an award is authorized by an agreement between the parties, or by statute or court rule (see Baker v Health Management Systems, Inc., 98 NY2d 80 [2002]; Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1 [1986]). In the case at bar, there is no provision in the lease agreement which would trigger a reciprocal right in tenant to recover such fees (see Real Property Law § 234; Cier Indus. Co. v Hessen, 136 AD2d 145 [1988]), and, insofar as tenant is seeking to recover attorney's fees as sanctions for the prior allegedly frivolous nonpayment proceedings brought against him, he should have sought to recover same in the prior proceedings (see Rules of the Chief Administrator [22 NYCRR] § 130-1.1; cf. Ocean Side Institutional Indus., Inc. v Superior Laundry, 15 Misc 3d 1123[A], 2007 NY Slip Op 50822[U] [Sup Ct, Nassau County 2007]). To the extent that tenant's counterclaims against landlord seek to recover the costs and disbursements incurred by the United States Government based on his claims of "scheme to defraud, enterprise corruption, official misconduct, [and] knowing, wanton, malicious and wilful [*3]criminal intent to defraud the government," tenant has no standing to assert these claims.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: November 05, 2008