Recitation of the papers considered in the review of the motionPapers NumberedRespondent’s motion with affirmation 1Petitioner’s affirmation in opposition 2Respondent’s affirmation in reply 3The court file 4The petition under index number 73440/18 5DECISION/ORDER Respondent moves for an award of attorney’s fees. The motion is granted to the extent of (a) deeming respondent the prevailing party herein, (b) holding that respondent is entitled to an award of attorney’s fees, and (c) recalling the proceeding to the court’s calendar on October 11, 2018 at 9:30 am so that the parties may fix a time and date for the requisite hearing to determine the amount of the award.Previously, petitioner began a holdover proceeding in this court under index number 74502/15 against respondent. Petitioner sought to evict her on the ground of nuisance, i.e., in particular, that she caused to emanate from her apartment and from herself odors that were offensive to other tenants and occupants of the building. The proceeding was first returnable on August 15, 2015. Some eight months later, on May 16, 2016, the parties began a traverse. The traverse did not finish that day; instead, the traverse was scheduled to continue on November 2, 2016. On that day, however, instead of finishing the traverse, the parties entered into a stipulation of settlement. The stipulation provided that the proceeding would be discontinued except that respondent’s claims for attorney’s fees and related relief would be preserved. Thereafter respondent moved for an award of attorney’s fees and by a decision and order dated March 28, 2017 the court (Wendt, J.) granted the same. Thereafter, pursuant to a two-attorney stipulation of settlement “so ordered” on November 5, 2017, petitioner paid respondent $30,000.00 to satisfy her claim for attorney’s fees.While this first lawsuit was going on, petitioner commenced a second proceeding-i.e., the above-captioned-against respondent on the same grounds. This proceeding was first returnable on October 13, 2016. Thereafter it was adjourned a number of times. By a decision and order dated March 23, 2017 the court (Schreiber, J.) held that a traverse should be held on May 1, 2017. This traverse was adjourned to June 15, 2017 and then to July 19, 2017 when the court (Cohen, J.) granted petitioner’s application to discontinue. Thereafter, except as described below, petitioner took no steps to revive its claim against respondent for nuisance.Now, by a notice of motion dated May 24, 2018, i.e., some ten months after petitioner sought the July 19, 2017 order discontinuing the proceeding, respondent moves to be deemed the prevailing party herein and for an award of attorney’s fees. Petitioner makes two arguments in opposition.One argument is that respondent cannot be deemed the prevailing party herein because the merits of the proceeding have not been ruled upon. This court disagrees and holds that respondent is the prevailing party in this second proceeding. Petitioner did not secure the relief that it sought, i.e., a judgment of possession and a warrant of eviction; instead, it is respondent who secured the relief that she sought, i.e., dismissal. Also, the court notes that CPLR 3217(c) provides that a discontinuance of a second lawsuit operates as an adjudication on the merits; in pertinent part that statute provides that “a discontinuance by means of notice operates as an adjudication on the merits if the party has once before discontinued by any method an action based on or including the same cause of action in a court of any state or the United States.” Here the discontinuance, in substance if not in form, was “by means of notice” inasmuch as petitioner could not discontinue voluntarily pursuant to CPLR 3217(a), but instead petitioner had to seek this relief in an application addressed to the court.Petitioner’s second argument is that an award of attorney’s fees ought not to be made here and now because the merits remain subject to litigation. In support petitioner shows that it has commenced a third lawsuit, i.e., one under index number 73440/18, that attempts to raise the same issues; the third lawsuit appears to be predicated upon a notice of default dated June 28, 2018 which notice refers to the notices dated June 11, 2014 and November 24, 2014 on which the first and second lawsuits were predicated. However, this third lawsuit was not brought until nearly a year after petitioner sought to discontinue the second lawsuit, and only after respondent moved for an award of attorney’s fees, Accordingly, “the only reasonable conclusion is that petitioner abandoned the matter….” 130 St. Marks Place LLC v. Hines, 54 Misc 3d 143 (A) (App Term, 1st Dep’t, 2017). To the same effect, see, 884 West End LLC v. Rosman, 53 Misc 3d 152 (A) (App Term, 1st Dep’t, 2016), W&HM Realty Partners Co., LLC v. Houtenbos, 54 Misc 3d 134(A) (App Term, 1st Dep’t, 2017).Accordingly, the court grants the motion as set out above.The court will mail copies of this decision and order to the parties.Dated: New York, NYOctober 1, 2018
