Appeal from an order of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), entered January 27, 2009. The order denied tenant's motion for an award of attorney's fees.

ORDERED that the order is affirmed without costs.

After prevailing in this holdover summary proceeding, tenant sought an award of attorney's fees based on Real Property Law § 234 and paragraph 16 (D) of the lease, which provides that the landlord may deduct his costs of getting possession and re-renting the apartment, including attorney's fees, from the rents received upon a reletting following a cancellation of the lease. As the subject clause "is not the type of provision covered by Real Property Law § 234" (Oxford Towers Co., LLC v Wagner, 58 AD3d 422, 423 [1st Dept 2009]; see Madison-68 Corp. v Malpass, 65 AD3d 445 [1st Dept 2009]; Hamilton v Menalon Realty, LLC, 14 Misc 3d 13 [App Term, 2d & 11th Jud Dists 2006]; Morris v Flaig, 511 F Supp 2d 282 [ED NY 2007]; see also Gannett Suburban Newspapers v El-Kam Realty Co., 306 AD2d 312 [2d Dept 2003]; but see Stephen LLC v Zucchiatti, 24 Misc 3d 1203[A], 2009 NY Slip Op 51245[U] [Civ Ct, NY County 2009]), the Civil Court's order denying tenant's motion for attorney's fees is affirmed. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 29, 2010