Steiger v. Dweck , 727 N.Y.S.2d 341 ( 2001 )

—In two related actions, inter alia, to recover damages for breach of a lease, the defendants in Action Nos. 1 and 2 appeal (1) from a decision of the Supreme Court, Westchester County (Barone, J.), dated December 21, 1999, and (2), as limited by their brief, from so much of a judgment of the same court, dated January 6, 2000, as, after a nonjury trial, dismissed that branch of their counterclaim in Action No. 1 which was to collect rent for the period after the plaintiffs in Action No. 1 vacated the premises, and failed to award them an attorney’s fee in Action Nos. 1 and 2, and the plaintiffs in Action Nos. 1 and 2 cross-appeal, as limited by their brief, from the same decision and so much of the same judgment as dismissed the complaints in Action Nos. 1 and 2, and is in favor of the defendants and against them on their counterclaim in Action No. 1 in the principal sum of $3,553.46, and on their counterclaim in Action No. 2 in the principal sum of $5,680.83.

Ordered that the appeal and cross appeal from the decision are dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the cross appeal by the plaintiffs in Action No. 1 from so much of the judgment as dismissed the complaint in Action No. 2, and is in favor of the defendants and against the plaintiffs in Action No. 2 on the counterclaim in Action No. 2, is dismissed, as the plaintiffs in Action No. 1 are not aggrieved by that portion of the judgment cross-appealed from (see, CPLR 5511); and it is further,

Ordered that the cross appeal by the plaintiffs in Action No. 2 from so much of the judgment as dismissed the complaint in Action No. 1 and is in favor of the defendants and against the plaintiffs in Action No. 1 on their counterclaim in Action No. 1 is dismissed, as the plaintiffs in Action No. 2 are not aggrieved by that portion of the judgment cross-appealed from (see, CPLR 5511); and it is further,

Ordered that the judgment is modified by (1) deleting the provision thereof dismissing that branch of the counterclaim of the defendants in Action No. 1 which was to collect rent for the period after the plaintiffs in Action No. 1 vacated the premises and is in favor of the defendants and against the plaintiffs in Action No. 1 on their counterclaim in the principal sum of $3,553.46, and substituting therefor a provision in favor of the defendants and against the plaintiffs in Action No. 1 in the principal sum of $9,475.76, and (2) adding a provision thereto awarding the defendants in Action Nos. 1 and 2 an attorney’s fee payable by the plaintiffs in Action Nos. 1 and 2; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, and the matter is remitted to the Supreme Court, Westchester County, for a hearing in accordance herewith to determine the amount of the attorney’s fee payable by the plaintiffs to the defendants in Action Nos. 1 and 2; and it is further,

Ordered that the defendants in Action Nos. 1 and 2 are awarded one bill of costs.

The Supreme Court properly dismissed the complaints in Action Nos. 1 and 2, and granted the defendants’ counterclaims for rent from the plaintiffs in both actions for the time they were in possession of the premises. However, we agree with the defendants that they are also entitled to collect rent from the plaintiffs in Action No. 1 for the remainder of the lease, after they unjustifiably vacated the premises (see, Fifty States Mgt. Corp. v Pioneer Auto Parks, 46 NY2d 573). Furthermore, the defendants are entitled to recover an attorney’s fee incurred in enforcing the leases with the plaintiffs in both actions (see, American Motorists Ins. Co. v Trans Intl. Corp., 265 AD2d 280; Matter of Castaldo [Harrington], 212 AD2d 1004). O’Brien, J. P., Altman, Luciano and Adams, JJ., concur.