Tenant appeals 1) from an order of the Civil Court, New York County (Laurie L. Lau, J.), dated November 2, 2004, which denied his motion to dismiss the petition in a nonpayment summary proceeding; 2) from an order of the court (Laurie L. Lau, J.), dated December 7, 2004, which denied his motion for reargument; 3) from a final judgment of the same court (Michelle D. Schreiber, J.), entered March 29, 2005, after a nonjury trial, which awarded possession to landlord; and 4) from an order of the same court (Michelle D. Schreiber, J.), dated June 3, 2005, which granted landlord's motion for attorneys' fees.

PER CURIAM:

Final judgment (Michelle D. Schreiber, J.), entered March 29, 2005, affirmed, without costs. Order (Michelle D. Schreiber, J.), dated June 3, 2005, reversed, without costs, and landlord's motion for attorney's fees is denied. Appeals from orders (Laurie L. Lau, J.), dated November 2, 2004 and December 7, 2004, dismissed, without costs, as subsumed in the appeal from the final judgment.

Pleading irregularities in a petition do not render a summary proceeding jurisdictionally defective where, as here, Civil Court has subject matter jurisdiction under RRAPL article 7 and personal jurisdiction over the tenant has been obtained (see Birchwood Towers #2 Assoc. v Schwartz, 98 AD2d 699, 700 [1983]; Jackson v New York City Hous. Auth., 88 Misc 2d 121, 122 [1976]). The trial court properly awarded petitioner-landlord the maintenance and additional rent charges herein sought, in view of landlord's ultimate trial showing that a valid multiple dwelling registration statement was in effect (see 390 West End Assoc. v Raif, 166 Misc 2d 730 [1995]; 9 Montague Terrace Assoc. v Feuerer, 191 Misc 2d 18 [2001]). However, despite landlord's status as prevailing party, the imposition of attorney's fees would be "manifestly unfair" (Wells v West 10th St. Assoc., 205 AD2d 431, 432 [1997]) under the particular circumstances of this case, and considering the substantial delay and expense caused by the landlord's halting efforts to attain and establish compliance with the governing registration requirements.

[*2]
William P. McCooe, J. (Concurring)

This is a residential non-payment proceeding where the self-represented tenant disputed the maintenance charges-rent and also withheld it pursuant to Multiple Dwelling Law Sec. 325(2) because, contrary to the amended petition, the landlord had never filed a multiple dwelling registration statement. I agree with the monetary award but disagree with the finding that the landlord is the prevailing party under the particular facts of this proceeding.

Motion practice regarding the registration statement and the status of the subject building resulted in the denial of the tenant's cross motion to dismiss the petition upon the motion court finding that the "lapsed registration" (MDR #139047) had since been renewed. Orders dated November 2, 2004 and December 7, 2004 (Laurie L. Lau, J.). These decisions were based upon the landlord submitting the registration number for a different building in its motion papers which misled the motion judge to decide the motion erroneously. The registration dated January 5, 2005 introduced into evidence (MDR #142341) at the trial was the first registration for this building. The landlord's motion to amend the petition to reflect that the subject property was a Mitchell-Lama cooperative and not subject to rent stabilization was granted.

The trial court awarded the landlord $4,419.00 and found it to be the prevailing party entitled to attorneys fees. The amount of the attorney's fee has not been judicially determined but the tenant has allegedly been billed for $8,180.09 and it is continuing.

I find that there is no prevailing party. Attorneys fees should be denied where "it would be manifestly" unfair (Wells v. East 10th Street Assocs, 205 AD2d 431, 431 [1st Dept 1994], lv. denied 84 NY2d 813 [1995]; Roxborough Apartments Corp v. Becker, 11 Misc 3d 99 [App Term, 1st Dept 2006]; Rose v. Montt Assets, Inc., 187 Misc 2d 497 [App Term, 1st Dept 2000, McCooe, J., dissenting]) to direct the tenant to pay the landlord's attorneys fees when a defense raised both in the answer and cross motion should have resulted in a dismissal based upon the true facts as they then existed (9 Montague Terrace v. Feuerer, 191 Misc 2d 18, 19 [App Term, 2d Dept 2001]). This dissent is not inconsistent with my dissent in Rose because the successful party, unlike here, had given the unsuccessful party an opportunity to discontinue which was refused.

Furthermore, while it could be argued that the landlord succeeded on the principal issue and the tenant only succeeded in having the building registered, it is important to follow the course that the litigation took. The landlord transformed what should have been a garden variety summary non-payment proceeding into one requiring motions and a cross motion because of its misstatements as to the status of the building in the petition and the motion papers which misled the motion court to render an erroneous decision and waste judicial resources. A dismissal of the proceeding at that point for failure to file a multiple dwelling registration statement would have resulted in the tenant being the prevailing party (9 Montague Terrace v. Feuerer, 191 Misc 2d 18, 19 [App Term, 2d Dept 2001]). The claim for attorneys fees is already twice the award ^[FN1] and in large measure was caused by the landlord's conduct. The landlord should not be rewarded for its mistakes nor should the tenant be required to pay for them (Chamberlain v. Chamberlain, 24 AD3d 589, 595 [2d Dept 2005]).

Based upon the history of this litigation, a finding that the landlord was the prevailing party would be "manifestly unfair." There is no prevailing party.

This constitutes the decision and order of the court.
Decision Date: December 29, 2006