| Smith v IG Second Generation Partners, L.P. |
| 2006 NYSlipOp 01716 |
| March 9, 2006 |
| Appellate Division, First Department |
| Irene B. Smith, Respondent, v IG Second Generation Partners, L.P., et al., Appellants. |
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Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered November 1, 2004, in favor of plaintiff tenant and against defendants landlords in the amount of $88,703.06, consisting of a refund of unlawfully charged rent in the amount of $39,380.17 as directed in a Division of Housing and Community Renewal (DHCR) fair market rent appeal order, prejudgment interest on the latter amount from the date of the Rent Administrator's order in the amount of $34,539.05, and attorneys' fees in the amount of $14,783.84, unanimously affirmed, with costs.
Defendants' failure to timely challenge plaintiff's use of CPLR 3213 to enforce DHCR's order precludes our consideration of such challenge (see P. Ballantine & Sons v Boston Celtics Basketball Club, 36 AD2d 914 [1971]). Because plaintiff was obliged to commence a plenary action to enforce DHCR's order, attorneys' fees and interest were authorized (see Paganuzzi v Primrose Mgt. Co., 268 AD2d 213 [2000]), and, under the circumstances, plaintiff was not obliged to offset her recovery by means of a rent abatement prior to commencing a plenary action (see Msibi v JRD Mgt. Corp., 154 Misc 2d 293 [1992]). Nor was the methodology used to compute attorneys' fees improper (see Matter of New York Convention Ctr. Dev. Corp. [Recycling for Hous. Partnership], 234 AD2d 167 [1996]). We have considered defendants' remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Sullivan, Nardelli and Williams, JJ.