Majority
p. 255Ram I, L. L. C., Formerly Known as Classic Residences, Inc., Respondent-Appellant, v Fred Stuart et al., Appellants-Respondents. [668 NYS2d 888]
—Order of the Appellate Term of the Supreme Court, First Department (Ostrau, P. J., and Freedman, J.; McCooe, J., dissenting), entered on or about April 22, 1997, which modified an order of Civil Court, New York County (Arthur Birnbaum, J.), entered February 21, 1996, to the extent of granting final judgment in favor of respondent tenants dismissing the holdover petition and vacating that part of the Civil Court order directing restoration of an old stove and that part of the same order awarding attorney’s fees to petitioner landlord, unanimously affirmed, without costs.
p. 256
Appellate Term properly concluded that, under the circumstances herein, tenants’ replacement of a 27-year-old stove with a new stove was merely a technical violation of the “no alterations” clause of the parties’ lease as opposed to a significant violation of a substantial obligation thereof (see, Matter of Park W. Vil. v Lewis, 62 NY2d 431 , 436-437). Vacatur of the award of counsel fees to the landlord was appropriate where the petition was properly dismissed and the central relief sought by the landlord was denied (Nestor v McDowell, 81 NY2d 410 , 415-416). Denial of tenants’ application for counsel fees where tenants’ breach of the lease, albeit minor, was established, was also appropriate.
Concur — Lerner, P. J., Sullivan, Rosenberger, Nardelli and Andrias, JJ.
Cases cited
- Park West Village v. Lewis 62 NY2d 431 at 436-437 p. 256
- Nestor v. McDowell 81 NY2d 410 at 415-416 p. 256