When a tenant-respondent receives a partial abatement after a trial in a non-payment proceeding

that is brought by a landlord-petitioner, where the landlord otherwise obtains a judgment for rent

arrears, which party, if either, is entitled to attorney’s fees?

A determination of which party is the prevailing party entitled to attorney’s fees following an

abatement hearing in a rent non-payment case is based on a comparison of the claims in the

petition with the respondent’s counterclaims and defenses, and assessing which party succeeds

most substantially on her claims. While there is no set formula for determining whether relief is

‘substantial,’ courts have tended to deem the landlord-petitioner the prevailing party entitled to

attorney’s fees where the landlord has received a judgment for a sum significantly greater than

fifty percent of the amount claimed, and/or where the tenant-respondent has withheld the rent due

principally to inability to pay rather than because of the conditions present in the apartment.

Analysis

To determine which, if either, party is entitled to attorney’s fees after an abatement hearing in a

non-payment proceeding, courts generally look at whether “plaintiffs prevailed upon the central

litigated issues and obtained substantial relief…” See, e.g., Peachy v. Rosenzweig, 215 A.D.2d 301

(1995); Excelsior 57 th Corp. v. Winters, 227 A.D.2d 146 (1996) (citing Solow v. Wellner, 205

A.D.2d 339 (1991)). More specifically, a significant factor the courts consider in determining

prevailing-party status is whether the petitioner/landlord recovers a judgment for the majority of

the amount claimed, relative to the amount of any abatement obtained by the respondent/tenant.

In Solow, the joint respondents were together deemed the prevailing party because the landlord-

petitioner recovered only 22 percent of the aggregate arrears claimed from the tenants, after the

court granted a large abatement to the respondents. Solow, 205 A.D.2d 339 (1991). In Peachy, by

contrast, where the tenant-respondent succeeded on only one of thirteen affirmative defenses and

received an abatement for less than 10 percent of the total judgment amount awarded to the

landlord-petitioner, the court awarded attorney’s fees to the landlord-petitioner. Peachy, 215

A.D.2d 301 (1995). In a different New York City district case, where the respondent obtained a 20

percent abatement, the court also deemed the landlord-petitioner the prevailing party entitled to an

award of attorney’s fees. Landmarks Restoration Corp. v. Gwardyak et al., 127 Misc. 2d 361 (City

Court of New York, 1985).

In another case where the percentage of the abatement granted to the tenant-respondent was

somewhat closer to the proportion of the judgment awarded to the landlord-petitioner, the court

held that neither party was entitled to attorney’s fees. See, e.g., V & J Inc., Respondent, v 2320

Route 112, LLC, 13 Misc. 3d 30 (2006). In V & J, the court held that “Since landlord obtained a

final judgment of possession as well as arrears for 3 1/2 months and tenant received a rent

abatement for 2 1/2 months, neither side was the prevailing party entitled to attorney's fees.” Id. at

32. Although the courts have not set forth a specific formula in these cases, a comparison of the V

& J Inc. case to the other aforementioned cases suggests that a roughly 40 percent overall

abatement might be sufficient for the respondent/tenant to avoid liability for the

petitioner/landlord’s attorney’s fees, although this is not a bright-line rule.

While the proportion of monetary relief awarded to the landlord-petitioner in a non-payment

proceeding relative to the abatement amount granted is a significant factor in determining

prevailing-party status, some courts have further considered why the tenant withheld the rent: Has

a tenant’s non-payment been primarily due to conditions in the apartment or the tenant’s inability

to pay, and is the amount of rent withheld commensurate to the particular conditions? See

Landmarks Restoration Corp., 127 Misc. 2d 361 (1985). In the Landmarks Restoration case

discussed above, the court moreover held that the true reason the tenant-respondent had withheld

all the rent in that case—the tenant’s financial difficulty paying the rent rather than the conditions

present—was factor holding the landlord-petitioner to be the prevailing party entitled to attorney’s

fees. Id. The court further observed that, “He [the tenant-respondent] could have just as well

protected his rights by paying or offering to pay a portion of the rent and withholding a portion.”

Id. at 362. Thus, tenant-respondents who have conditions but who withhold more rent than the

proportion of rent commensurate to those conditions, especially where there is evidence of the

financial difficulty, are at greater risk of being deemed the non-prevailing party in a non-payment

case even where a partial abatement is awarded.

Conclusion

Based on a consideration of the aforementioned cases taken together, tenants who obtain abatements

for less than half of amount of the total arrears claimed by the petitioner at trial are at higher risk of

being held liable for the petitioner-landlord’s attorney’s fees. Respondent-tenants should be urged to

pay the majority of the arrears they owe to petitioner-landlords before an abatement hearing occurs in a

non-payment case, minus those arrears in the total amount that would roughly correspond to the

amount of the abatement to which the respondent-tenants would likely be entitled upon trial. By

paying the majority of arrears before an abatement hearing occurs, except the approximate total

amount a court would likely award for an abatement, respondent-tenants could increase the likelihood

that the petitioner-landlord will not be deemed to ‘prevail upon the central issues litigated’ and to

obtain a judgment providing ‘substantial relief,’ and in turn an award of attorney’s fees also after trial.

This memorandum has not assessed the amount of an abatement to which a respondent-tenant may be

entitled based upon the type and duration of the conditions present in a respondent’s apartment.

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Bikram Singh

Mr. Singh has been practicing law in the New York State and Federal Courts for almost 10 years. He was a principal attorney at Bikram Singh Law, P.C., after graduating with honors from Touro College Jacob D. Fuchsberg Law Center in 2008.