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Olney v Areiter (2013 NY Slip Op 02127)

Decided and Entered: March 28, 2013
514341
[*1]WILLIAM F. OLNEY, Doing Business as EAST HILL PROPERTIES, Respondent,
v

ERIC AREITER et al., Appellants.
Calendar Date: February 8, 2013
Before: Mercure, J.P., Spain, McCarthy and Garry, JJ.

Edward E. Kopko, Lawyer, PC, Ithaca (Edward E.
Kopko of counsel), for appellants.
Holmberg, Galbraith, Van Houten & Miller, Ithaca
(Dirk A. Galbraith of counsel), for respondent.

MEMORANDUM AND ORDER
Mercure, J.P.
Appeal from an order of the Supreme Court (Mulvey, J.), entered June 22, 2011 in Tompkins County, which, among other things, partially denied defendants' cross motion for a counsel fee award.
file:///C|/Users/Peter/Desktop/NY/5/2013_02127.htm[4/23/2013 12:41:21 PM] Olney v Areiter (2013 NY Slip Op 02127)
In July 2008, defendants and three other roommates entered into a written lease with plaintiff to rent an apartment for 13 months and to pay $2,625 in monthly rent. Plaintiff commenced this action in April 2009, seeking $21,000 in rent and late fees, asserting that defendants failed to make rent payments after August 2008. Defendants answered and, along with their three other roommates who were not named as parties, asserted counterclaims, including breach of the warranty of habitability.
The matter proceeded to a jury trial, at the conclusion of which the jury found that defendants and their roommates had breached the lease agreement and awarded plaintiff $17,000 in damages, reduced by $2,000 based upon plaintiff's failure to mitigate his damages. The jury further determined that plaintiff breached the warranty of habitability, and awarded defendants and their roommates $5,250. Plaintiff moved to set aside the verdict, and for a counsel fee award, and defendants and their roommates cross-moved for the same relief. Supreme Court denied the motions for counsel fees, set aside the verdict, and ordered a new trial; the court [*2]concluded that it had erred in refusing to instruct the jury on constructive eviction.
Defendants appeal, arguing solely that they and their roommates are entitled to a counsel fee award under Real Property Law

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