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Defeating a Motion for Legal Fees; Sometimes a Cigar is Just a Cigar

December 26, 2017

In this saga I represent an owner of a multifamily building[1]. The tenant in this story has decided that her apartment should be the subject of a million dollar buyout. It doesn’t matter that the building is filled with other tenants and that the owner’s plans for redevelopment are years away from even beginning. This guy thinks his million bucks awaits him, if he can just torture the landlord enough.

Therefore, in three years, he has never once paid the rent in this nearly violation-free building. Never once. The landlord has had to sue him three times. The first two times, the tenant paid in full on the eve of trial. 

In an almost comical progression, this guy has variously been represented by NINE (9) different tenant lawyers. Each, in succession, has called me up and asked me if there was a buyout to be had here. Each time I said…no. Each tenant lawyer subsequently quit or asked the court to be relieved. 

The last poor firm, however, got stuck in the case. On the third lawsuit for rent, the tenant had to try the case. He knew another substantial rent payment on the eve of trial would set up the ball for a chronic non-pay case. So, try the case we did. After a two-day trial, the tenant received a partial abatement of the rent for the period sued for. Tenant, again, cut the check for the large balance immediately. Tenant’s lawyer then moved for a determination that tenant was the prevailing party and that, therefore, landlord should pay tenant’s legal fees. The general rule is that if a tenant is withholding rent to get repairs, and wins an abatement, they might well be considered the prevailing party. But, this tenant did NOT withhold rent in order to get repairs! First, the condition that resulted in the small abatement arose 9 months after the latest default began! Second, this tenant’s agenda in withholding rent was solely and clearly because someone told him that making the landlord sue you is a pathway to a buyout. It’s not. So, thankfully and correctly, the judge agreed with me and denied the tenant’s motion for legal fees. 

What’s the lesson? Sometimes a cigar is just a cigar. Sometimes an apartment is just an apartment. Not every Rent Stabilized apartment is a million dollar buyout waiting to happen. Some landlords still actually just want their tenants to pay the rent.

Respectfully submitted,

Michelle Itkowitz

[1] Details changed to protect people’s privacy.

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