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The answer depends on the language found in your proprietary lease. See Justice Sher’s decision in SYLVIA BERKOWITZ, as Executrix for the Estate of MARTIN BERKOWITZ, now deceased, and Individually’ Plaintiffs, – against – 29 WOODMERE BLVD. OWNERS’, INC., ALEXANDER WOLF AND COMPANY, STEVEN MIRSKY, ERIC J. KINSEY, JEANNE KINSEY, LORI SAMUELSON, LISA ARIAN, FRANCINE ROSEN ANd ANGELA DELMAZIO, TRIAL/IAS PART 33 NASSAU COUNTY Index No.: 3203/12 Motion Seq. No.: 04 Motion Date: 05/06/13 Defendants.

Recent appellate authority supports this conclusion. Identical language to that in paragraph twenty-eight (28) of the proprietary lease between the parties hereto has been recently construed by the Appellate Division, Second Department, to provide for recovery of attomeys’ fees by landlords in cases where breaches of proprietary leases by tenants were alleged. See Great NeckTerrace Owners Corp v. McCabe,2O11 WL 3471233 (Supreme Court Nassau County 20ll) af’d 101 A.D.3d 944, 957 N.Y.S.2d2l6 (ZdDept 2012) (failure (sic) to clean cat urine and refusal to provide access). ln St. George Tower & Grill Owners Corp. v. Honig, 232 A.D’zd 475′ 648 N.Y’S.2d 172 (2d Dept. 1996), the Appellate Court quoted paragraph twenty-eight (28) of the lease therein, which is identical to paragraph twenty-eight (28) of the parties’ lease herein. The Court found the lease provision inapplicable because it “applies to actions which are commenced as a result of the tenant’s default.” Id. at 476. There, the underlying actions did not concem the tenant’s default but rather the landlord’s refusal to consent to sublets. The tenant’s motion for judgment dismissing the new complaint by the landlord for recovery of attorneys’ fees in defending the underlying actions was granted pursr.rant to CPLR $ 321 1. See also Maliner-Cohtin v. 85-I0 34’h Ave- Apt. Corp.,284 A.D.2d 434,726 N.Y.S.2d 861 (2d Dept. 2001)(summary judgment dismissing counterclaim for attomeys’ fees affirmed where plaintiff sued for declaration that it is a holder of unsold shares).

This Court determined, in its prior Order, that the Verified Complaint herein alleges claims against defendants for breach of fiduciary duty and breach ofthe implied covenant of good faith and fair dealing. In their Answer with Counterclaim, defendants do not allege any default or breach ofthe lease by plaintiffs. Under these circumstances where no default is alleged, defendants have no cause of action for recovery ofexpenses, including attomeys’ fees, pursuant to paragraph twenty-eight (28) ofthe proprietary lease. Recent appellate authority supports this conclusion. Identical language to that in paragraph twenty-eight (28) ofthe proprietary lease between the parties hereto has been recently construed by the Appellate Division, Second Department, to provide for recovery of attomeys’ fees by landlords in cases where breaches of proprietary leases by tenants were alleged. Finally defendants do not allege the existence ofany other agreement with plaintiffs, any statute or any court rule authorizing recovery of such fees. See Mount Vernon City School Dist. v. Nova Cas. Co., 19 N.Y.3d 28, 945 N.Y.S.2d 202 (2012) citing Maffer of A G. Ship Maintenance Corp. v. Lezak,69 N.Y.2d l, 511 N.Y.S.2d 216 (1986).

Based on the foregoing, on this record, defendants have no cause of action against plaintiffs for recovery ofexpenses, including attorneys’ fees, and tlerefore, plaintiffs are entitled to judgment dismissing the counterclaim for such relief pursuant to CPLR $ 3211(aX7)’