GENSON v. SIXTY SUTTON CORP.

PER CURIAM.

We agree that defendant-landlord's second counterclaim, insofar as it seeks attorneys' fees, is not ripe for summary dismissal. Depending on the substantive resolution of the parties' competing claims and whether landlord ultimately achieves prevailing party status, the substantial rent and/or maintenance arrearages attributed to plaintiff-tenant in the second counterclaim may serve to trigger the landlord's entitlement to attorneys' fees under paragraph 30 of the parties' proprietary lease agreement, which authorizes landlord's recovery of attorneys' fees for actions or proceedings brought as a result of "any" lease "default" by the tenant. That landlord advanced its breach of lease claim in the form of a counterclaim in this plenary action commenced by tenant, and not by way of its own independent action or proceeding, does not preclude its recovery of contractual attorneys' fees otherwise shown to be due (see Duane Reade v York Towers, Inc., 22 A.D.3d 246 [2005]; Britti Corp. v Perry Thompson Third LLC, 26 A.D.3d 235 [2006]; see also CPLR 3019[d]; but see H.L. Klion, Inc. v Venimore Bldg. Corp., 21 A.D.2d 673 [1964], mod on other grounds 15 N.Y.2d 601 [1964]), particularly in these circumstances where tenant affirmatively asserted her own entitlement to attorneys' fees in her reply to landlord's counterclaim. Enforcement of the lease attorney fee provision agreed upon by the parties should not be made to hinge on the outcome of a race to the courthouse.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.