Parker 72nd Assocsiates v. Isaacs

Majority - Diane A. Lebedeff, J.

Yes, Real Property Law section 234 allows a pro se attorney-tenant to recover attorney's fees when the lease provides for the landlord to recover such fees and the pro se attorney successfully defends a nonpayment proceeding. The court first addressed the warranty of habitability claim. It found that the tenant’s credible testimony, supported by a fellow tenant’s records, established 17 instances of no heat and 13 instances of no hot water during January, February, and March 1980. The owner’s witnesses, while generally denying problems, admitted to installing new heating and hot water control systems during that period and receiving complaints. The court held that a failure to provide heat or hot water constitutes a danger to life, health, and safety, thus breaching the warranty of habitability under Real Property Law section 235-b. Adopting a 50% abatement formula, consistent with the Office of Rent Control and affirmed in Park West Mgt. Corp. v Mitchell, the court granted an abatement of $35.54 for lack of hot water and $67.72 for lack of heat. Regarding attorney's fees, the court acknowledged that section 234 creates a reciprocal right for tenants to recover fees if the lease grants the owner such a right. Although lacking direct New York precedent, the court relied on the historical right of a pro se attorney to recover litigation expenses, as explored in Kopper v Willis (1881). Kopper emphasized that a pro se attorney incurs "pecuniary loss or damage" by devoting professional time, knowledge, and experience to their own cause, which they would otherwise have to pay another attorney to render. The court also noted the Second Circuit’s view in Crooker v United States Dept. of Treasury that legislative intent might allow such awards for claimants diverting time from "income-producing activities." The court concluded that the statutory requirement for fees to be "incurred" is broad enough to encompass a pro se attorney's pecuniary loss or diversion of professional time. While the tenant lost no direct income, the diversion of professional time compensated by additional work hours satisfied the 'incurred' requirement. The court awarded $150 in attorney's fees, rejecting the use of the tenant's firm's billing rate because it includes elements beyond the attorney's time, and explicitly excluded time spent on obtaining the fee award itself.