Can a tenant recover attorney's fees for summary proceedings that have been dismissed where another summary proceeding is pending?

The tenant may not recover attorney's fees for summary proceedings that have been dismissed where another summary proceeding on the same grounds is pending because the landlord might ultimately succeed. Elkins v. Cinera Realty, 61 A.D.2d 828, 402 N.Y.S.2d 432.

On the other hand, in McMahon v. Schwartz, 109 Misc.2d 80, 438 N.Y.S.2d 215, the court found the tenant was entitled to recover attorney's fees incurred in two previous holdover proceedings based on failure to correct violations, even though a nonpayment proceeding was pending. The court reasoned that by the non-payment proceeding the landlord was affirming the existence of the lease and had abandoned its claim that lease violations terminated the lease. Thus the previous holdover proceedings had culminated in tenant's favor. McMahon v. Schwartz, supra at p. 83, 438 N.Y.S.2d 215.