Who Is the Prevailing Party?—Legal Fee Motions—Landlord Was Not the Prevailing Party—Landlord Recovered Less Than Half of Its Claim—Surcharges Were a Penalty and Not "Rent"

A court denied a landlord's motion to restore a matter for a determination of attorney fees on the grounds that the landlord could not establish that it was a prevailing party. The court granted the landlord's motion to quash the tenant's subpoena.

This decision involved a case with a "long-protracted" litigation history that included two appeals to the Appellate Term. The landlord had commenced the subject nonpayment proceeding, alleging that the tenant failed to pay $12,011.92 in rental arrears. The landlord alleged that $6,739.70 of the $12,011.92 "represented surcharges assessed against the (tenant) because they failed to certify their income." The landlord sought a possessory and a money judgment.