Wells v. East 10th Street Associates

Order, Supreme Court, New York County (Burton S. Sherman, J.), entered on or about December 6, 1993, which granted defendant’s motion for sum*432mary judgment and denied plaintiffs cross motion for summary judgment, unanimously affirmed, without costs.

Although defendant landlord was initially granted summary judgment in a summary proceeding, which decision was affirmed, without opinion, by the Appellate Term, we reversed based on the Court of Appeals subsequent decision in Braschi v Stahl Assocs. Co. (74 NY2d 201) and ordered defendant to issue plaintiff a renewal lease (East 10th St. Assocs. v Estate of Goldstein, 154 AD2d 142). Since it would be manifestly unfair to require defendant to pay plaintiffs attorney’s fees given the fact that defendant commenced this action under the law existing at that time which supported landlord’s cause of action, it was not an abuse of discretion to deny plaintiff attorney’s fees pursuant to Real Property Law § 234 (see, Feierstein v Moser, 124 Misc 2d 369, 372-373, citing Nesbitt v New York City Conciliation & Appeals Bd., 121 Misc 2d 336, 340). We also note that plaintiff has never exercised his right to a renewal lease. Concur—Sullivan, J. P., Rosenberger, Ross, Williams and Tom, JJ.