Although defendant landlord was initially granted summary judgment in a summary proceeding, which decision was affirmed, without opinion, by the Appellate Term, we reversed based on the Court of Appeals subsequent decision in Braschi v. Stahl Assocs. Co. ( 74 N.Y.2d 201) and ordered defendant to issue plaintiff a renewal lease (East 10th St. Assocs. v. Estate of Goldstein, 154 A.D.2d 142). Since it would be manifestly unfair to require defendant to pay plaintiff's attorney's fees given the fact that defendant commenced this action under the law existing at that time which supported landlord's cause of action, it was not an abuse of discretion to deny plaintiff attorney's fees pursuant to Real Property Law § 234 (see, Feierstein v. Moser, 124 Misc.2d 369, 372-373, citing Nesbitt v. New York City Conciliation Appeals Bd., 121 Misc.2d 336, 340). We also note that plaintiff has never exercised his right to a renewal lease.
Concur — Sullivan, J.P., Rosenberger, Ross, Williams and Tom, JJ.