Under Real Property Law Section 234 (RPL 234), when a residential lease provides for the landlord’s recovery of attorney fees resulting from the tenant’s breach of the lease, a reciprocal covenant is implied requiring the landlord to pay the tenant’s attorney fees incurred as a result of, among other things, the tenant’s successful defense of an action or summary proceeding that the landlord commenced arising out of an alleged lease default. In order for the tenant to become entitled to attorney fees, the tenant must be the “prevailing party,” meaning that the result must be substantially favorable to the tenant.1
While the court has some discretion to deny attorney fees to the “prevailing party” in the underlying litigation, the courts have repeatedly held that such discretion should be exercised sparingly, and that attorney fees should not be denied to the prevailing party unless “bad faith is established on the part of the successful party or where unfairness is manifest.”2
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