
    [723 NYS2d 816]
    4220 Broadway Associates, Appellant, v Raul Perez, Respondent.
    Supreme Court, Appellate Term, First Department,
    November 30, 2000
    APPEARANCES OF COUNSEL
    
      Borah, Goldstein, Altschuler & Schwartz, P. C., New York City (Paul N. Gruber of counsel), for appellant. Northern Manhattan Improvement Corporation, New York City {Kenneth Rosenfeld and Lourdes R. Mo of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Order entered December 22, 1999 affirmed, with $10 costs.

Civil Court properly vacated the final judgment and warrant in this nonpayment proceeding upon tenant’s tender of all outstanding arrears (see, Parkchester Apts. Co. v Scott, 271 AD2d 273). Landlord’s election to first apply tenant’s tender toward the nonpossessory judgment for attorneys’ fees, thereby creating a “shortfall” in the amount of tenant’s tender, does not dictate a contrary result. This course of action would effectively circumvent our holding in Silber v Schwartzman (150 Misc 2d 1) that attorneys’ fees do not constitute additional rent in the context of rent regulated tenancies and may not serve as the predicate for an eviction.

McCooe, J. P., Davis and Suarez, JJ., concur.  