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Binaku Realty Co. v Penepede (2004 NY Slip Op 50292(U))
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Decided on April 6, 2004
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. MARTIN SCHOENFELD, Justices.
570209/03

BINAKU REALTY CO., Petitioner-Landlord -Appellant,
against
PHILLIP PENEPEDE, Respondent -Tenant -Respondent.
Landlord appeals from a judgment of the Civil Court, Bronx County, entered September 3, 2002 (Anthony J. Fiorella, Jr., J.) awarding attorney's fees to tenant in the sum of $13,690.00 in a holdover summary proceeding.
PER CURIAM:
Judgment entered September 3, 2002 (Anthony J. Fiorella, Jr., J.) modified, without costs, to reduce tenant's recovery for attorney's fees to the principal amount of $7,500; as modified, judgment affirmed, without costs.
file:///C|/Users/Peter/Desktop/NY/2/2004_50292.htm[4/21/2013 1:36:31 PM] Binaku Realty Co. v Penepede (2004 NY Slip Op 50292(U))
While the issue of the reasonableness of tenant's attorney's fees was properly decided on papers in view of the landlord's waiver of a hearing on the issue (see, Goldstein v Shapiro, 251 AD2d 372 [1998]), we find the amount of the fees awarded below excessive to the extent indicated. In so concluding, we adopt the trial court's stated view that counsel's expenditures of time were "somewhat excessive," and note that tenant, although ultimately achieving prevailing party status via a successful motion for summary judgment, is not entitled to recover the portion of his attorney's fees incurred in connection with the filing of an unsuccessful pre-answer dismissal [*2]motion (see, Nestor v Britt, NYLJ, July 2, 1998, at 32, col 1 [App Term, 1st Dept, affd 270 AD2d 192 [2000]; see also, Quoratino v Tiffany & Co., 166 F2d 422, 427 [1999]).

This constitutes the decision and order of the court.
file:///C|/Users/Peter/Desktop/NY/2/2004_50292.htm[4/21/2013 1:36:31 PM]

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