| Goidel & Siegel, LLP v 122 E. 42nd St., LLC |
| 2016 NY Slip Op 06872 |
| Decided on October 20, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 20, 2016
Mazzarelli, J.P., Acosta, Richter, Kapnick, Gesmer, JJ.
101979/11 -153389/12 1972 1971 1970 1969 1968
v
122 East 42nd Street, LLC, Defendant-Appellant.
122 East 42nd Street, LLC, Plaintiff-Appellant, -against-
v
Jonathan Goidel, et al., Defendants-Respondents.
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (John G. Nicolich of counsel), for appellant.
Goidel & Siegel, LLP, New York (Andrew B. Siegel of counsel), for respondents.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about October 13, 2015, which, insofar as appealed from, denied plaintiff 122 East 42nd Street, LLC's (landlord) motion for partial summary judgment on its claim for attorneys' fees in index No. 153389/12, unanimously reversed, on the law, without costs, the motion granted, and the matter remanded for determination of reasonable attorneys' fees. Order, same court and Justice, entered October 14, 2015, which, insofar as appealed from, denied defendant landlord's motion for partial summary judgment on its claim for attorneys' fees in index No. 101979/11, unanimously reversed, on the law, without costs, the motion granted, and the matter remanded for determination of reasonable attorneys' fees.
Pursuant to the stipulation settling the parties' multiple litigations against each other, tenant Goidel & Siegel, LLP, and its members, Jonathan Goidel and Andrew Siegel, guarantors of the payment of the rent, agreed to pay, inter alia, an amount of money in "liquidation of . . . all unpaid rent and additional rent allegedly owed . . ., but not including attorneys' fees and expenses," and the parties agreed to discontinue all remaining claims against each other. The parties further agreed that the payment of the abovementioned amount would be accepted by landlord "without prejudice to Tenant's and Guarantors' defenses and affirmative defenses" and that, after the stipulation was entered and payment was received, landlord would move for an order finding tenant and its members liable for landlord's attorneys' fees.
Having received all allegedly unpaid rent and additional rent, exclusive of legal fees, which, pursuant to the lease, had become additional rent, and which were reserved for judicial resolution, landlord is the prevailing party (see Sykes v RFD Third Ave. I Assoc., LLC, 39 AD3d 279 [1st Dept 2007]).
Tenant and its members argue that landlord is not the prevailing party because its claims were discontinued with prejudice, while their affirmative defenses have not been disposed of. However, all claims having been discontinued, there can be no further proceedings to test those [*2]affirmative defenses, and landlord has already obtained all the non-legal-fee rent it sought.
In light of the foregoing, the matter is remanded to Supreme Court for a determination of landlord's reasonable attorneys' fees incurred in connection with the above-captioned matters and, pursuant to the stipulation, the proceeding commenced in Civil Court, New York County, L & T index No. 50778/2011, and including the fees incurred in seeking attorneys' fees (see Katz Park Ave. Corp. v Jagger, 98 AD3d 921, 922 [1st Dept 2012]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 20, 2016
CLERK