JUDITH ANN ABRAMS, pet-ap, v. 4-6-8, LLC, TRANSREALTY INC., AND MICHAEL KING, res-res, -andDEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (DHPD), res
12-397/399. JUDITH ANN ABRAMS, pet-ap, v. 4-6-8, LLC, TRANSREALTY INC., AND MICHAEL KING, res-res, -andDEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (DHPD), res — Judgment (David B. Cohen, J.), entered on or about January 28, 2010, affirmed, with $25 costs. Judgment (David J. Kaplan, J.), entered March 21, 2011, reversed, without costs, and the award of attorney's fees is vacated.
We sustain the trial court's dismissal of this Housing Part (HP) enforcement proceeding. A fair interpretation of the evidence, including the opinion testimony of landlord's acoustic expert, supports the court's factladen determination that the noise violation — relating to the noise emanating from the boiler directly beneath tenant's ground floor apartment — had been corrected prior to trial, and that the sound levels in her apartment did not violate the Building Code. The evidence showed and the court expressly found that landlord performed "significant work" in the boiler room and remedied the condition as of September 2008. These findings, resting in large measure on considerations relating to the credibility of witnesses, is entitled to deference on appeal (see Thoreson v. Penthouse Intl., 80 NY2d 490, 495 ). In this regard, the trial court was in the best position to evaluate the credibility of the witnesses and to choose among conflicting expert opinions (see Rite Aid of New York No. 4928 v. Assessor of Town of Colonie, 58 AD3d 963, 964 , lv denied 12 NY3d 709 ).
The award of counsel fees to the landlord is not warranted on this record, which shows that tenant had to resort to legal proceedings to compel landlord to cure the violation (see Rosario v. 288 St. Nicholas Realty, 177 Misc 2d 78 ; cf. AD 1619 Co. v. VB Management, Inc., 259 AD2d 382 ), and that it took landlord many months to cure the violation (see East Midtown Plaza Hous. Co. v. Cannings, 14 Misc 3d 127[A], 2006 NY Slip Op 52481[U] [App Term, 1st Dept 2006]). Nor was tenant entitled to attorneys' fees since, as Civil Court expressly found, tenant "still maintained and significantly prolonged this proceeding" after the violation had been cured. Thus, it would be unfair and inequitable to award either party attorney's fees in this case (see generally Kralik v. 239 East 79th Street Owners Corp., 93 AD3d 569 ; Wells v. East 10th Street Assoc., 205 AD2d 431, 432 , lv denied 84 NY2d 813 ), inasmuch as "neither can claim to have been merely the hapless victim of the other's combative litigation style" (Walenta v. Johnes, 257 AD2d 352, 354 , appeal dismissed 93 NY2d 958 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.