| Boulevard Hous. Corp. v Bisk |
| 2011 NY Slip Op 00017 [80 AD3d 430] |
| January 4, 2011)<> |
| Appellate Division, First Department |
| Boulevard Housing Corp., Respondent-Appellant, v LaurenBisk, Appellant-Respondent. |
—[*1] Moses & Singer LLP, New York (Joel David Sharrow of counsel), forrespondent-appellant.
Order of the Appellate Term of the Supreme Court of the State of New York, First Department,entered on or about December 19, 2008, which reversed a final judgment of Civil Court, New YorkCounty (David B. Cohen, J.), entered on or about April 23, 2007, granting respondent tenant's motionto dismiss the petition for possession and rent arrears and awarding her partial attorney's fees, anddirected entry of judgment in petitioner landlord's favor, unanimously reversed, on the law, with costs,and the proceeding remanded for a new trial.
The Appellate Term erred in directing judgment in favor of the landlord because the Civil Courthad directed judgment for the tenant at the close of the landlord's case but before the tenant putforward her affirmative proof. By reversing and directing a verdict for the landlord, the Appellate Termdeprived the tenant of an opportunity to put forward any proof (see CPLR 4401; Vera vKnolls Ambulance Serv., 160 AD2d 494, 496 [1990]).
The landlord's continued demand for payment of past amounts due that had been settled as ofNovember 30, 2005, created an issue of fact as to whether the tenant was entitled to apply the moneypaid toward that settlement to her rent from that date forward (see Computer Possibilities Unlimitedv Mobil Oil Corp., 301 AD2d 70, 80 [2002], lv denied 100 NY2d 504 [2003]).
As petitioner is no longer a prevailing party, it is not entitled to attorney's fees.Concur—Mazzarelli, J.P., Sweeny, Catterson, Renwick and DeGrasse, JJ. [Prior CaseHistory: 21 Misc 3d 145(A), 2008 NY Slip Op 52535(U).]