Schuette v. Brookford LLC

2021 NY Slip Op 06821

Margaret Schuette, Plaintiff-Appellant, v. Brookford LLC, Defendant-Respondent.

Appeal No. 14786 Case No. 2020-03376

Index No. 152993/19

Supreme Court of New York, First Department

December 7, 2021

Sokolski & Zekaria, P.C., New York (Mark Davies of counsel), for appellant.

Rosenberg & Estis, P.C., New York (Jeffrey Turkel of counsel), for respondent.

Before: Acosta, P.J., Gische, Webber, Friedman, Kennedy, JJ.

Order Supreme Court, New York County (Kathryn E. Freed, J.) entered January 10, 2020, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

The complaint fails to state a cause of action for attorneys' fees under Real Property Law (RPL) § 234, as the statute does not provide for attorneys' fees under these circumstances. Our well-established precedent holds that DHCR proceedings, such as the one that defendant commenced here do not trigger the reciprocal provisions of RPL 234 because "[a]n administrative proceeding is not an action" (Matter of Chessin v New York City Conciliation and Appeals Bd., 100 A.D.2d 297, 306 [1st Dept 1984] [internal quotation marks omitted]). This Court has repeatedly interpreted the words "in any action or summary proceeding" in RPL 234 not to include administrative proceedings (see e.g. Regina Metro. Co., LLC v New York State Div. of Hous. and Community Renewal, 164 A.D.3d 420, 424 n 3 [1st Dept 2018], affd 35 N.Y.3d 332 [2020]; Matter of 251 CPW Hous. LLC v Pastreich, 124 A.D.3d 401, 406 [1st Dept 2015]).

Although both parties assert that sanctions are warranted, neither parties' conduct was "completely...