Elkins v. Cinera Realty

In Elkins v. Cinera Realty, 61 AD2d 828, 402 NYS2d 432 [2d Dept 1978], the landlord had commenced a total of three summary proceedings against its tenant. The first two were dismissed without prejudice: the first, because the landlord failed to appear; and the second, because the petition had not been properly verified. The court denied the tenant's application for attorneys' fees because the third summary proceeding had already been commenced on the same theory. The Second Department held that since the controversy had not yet been finally determined, the tenant's application for attorneys' fees was premature. The Court reasoned that if the landlord is ultimately successful in recovering the rent due under the lease, it would be unjust to allow the plaintiff-tenant to recover his reasonable attorney's fees based on the outcome of each separate stage of what is clearly one controversy.