EXCELSIOR 57TH CORP. v. WINTERS

The basic issue to be determined on this appeal is which party should be accorded the status of "prevailing party", thereby allowing recovery of attorneys' fees. We have previously stated that such a determination requires an initial consideration of the true scope of the dispute litigated, followed by a comparison of what was achieved within that scope ( Solow v. Wellner, 205 A.D.2d 339, 340, affd 86 N.Y.2d 582). At issue, here, was a claim by the petitioner-landlord for 54 months' rent in which the tenants claimed constructive eviction and breach of warranty of habitability for 24 of those months. However, both Civil Court and the Appellate Term determined that the tenants were entitled only to a rent abatement for some 4 1/2 months. Under such circumstances, it is clear that the landlord should be accorded the status of "prevailing party" and entitled to attorneys' fees pursuant to the lease ( Peachy v. Rosenzweig, 215 A.D.2d 301).

We have considered respondents-tenants' other contentions, that they established a constructive eviction lasting two years and that their property damage claim was not properly considered by the Civil Court, and find them to be without merit.

Concur — Murphy, P.J., Wallach, Ross, Nardelli and Williams, JJ.