The Appellate Division, First Department, issued an opinion attempting to reconcile conflicting decisions about a petitioner’s obligation to reimburse a respondent’s professional fees in a proceeding held pursuant to Section 881 of the Real Property Actions and Proceedings Law (RPAPL §881).

The court held in 1643 First LLC v. 1645 1st Ave. LLC [Case Nos. 2022-02108, 2022-02371, 2024 N.Y. Slip Op. 01111, 2024 WL 847769 (1st Dept. Feb. 29, 2024)] that a petitioner need only reimburse a respondent’s professional fees if the trial court determines that such fees are reasonable and if the respondent did not incur those fees due to litigation errors or respondent’s misconduct.