Cornell Univ. v Gordon

Cornell Univ. v Gordon 2010 NY Slip Op 02072 [71 AD3d 535] March 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

Cornell University et al., Respondents,
v
Francine Gordon, Appellant.

—[*1] Norman A. Olch, New York, for appellant.

Belkin Burden Wenig & Goldman, LLP, New York (Robert A. Jacobs of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Walter B. Tolub, J.), entered December 19, 2008, in favor of plaintiffs and against defendant in the amount of $39,449.43 (after offsetting a judgment in favor of defendant in another action), unanimously modified, on the law, to reduce the award to $8,015, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

Plaintiffs, who are defendant's landlord, originally sought attorneys' fees pursuant to a stipulation of settlement that provided for such fees in the event of defendant's noncompliance with the stipulation, and were awarded a money judgment. Inasmuch as $31,434.43 of the judgment on appeal was awarded to compensate plaintiffs for their attorneys' fees incurred in enforcing the money judgment, as opposed to enforcing the stipulation underlying the money judgment, that portion of the jury award amounted to a "fee on a fee" not expressly authorized by the stipulation or by statute, and is therefore not recoverable (see David Z. Inc. v Timur on Fifth Ave., 7 AD3d 257, 258 [2004]; Getty Petroleum Corp. v G.M. Triple S. Corp., 187 AD2d 483, 484 [1992]).

The fee award of $15,000, compensating plaintiffs' attorneys for their efforts to compel defendant's compliance with the term of the stipulation that required defendant, at her sole cost and expense, to remove the final remaining Department of Buildings violation issued against the building because of her unauthorized apartment renovation, was not excessive under the circumstances.

Inasmuch as defendant fully consented to—indeed even proposed—having the two alternate jurors deliberate and render a verdict with the regular jurors, she has failed to preserve her argument that the court committed reversible error in submitting the case to a jury of eight persons rather than six (see Fader v Planned Parenthood of N.Y. City, 278 AD2d 41 [2000]; see also Sharrow v Dick Corp., 86 NY2d 54, 59-60 [1995]; Waldman v Cohen, 125 AD2d 116, 118-124 [1987]). Also unpreserved, for failure to timely object, is defendant's argument that the six-to-two jury votes in favor of plaintiffs were contrary to the requirement of CPLR 4113 (a) that a verdict must be rendered by not less than five-sixths of the jurors constituting a jury (see Harvey v B & H Rests., Inc., 40 AD3d 241 [2007]). We note, however, with respect to the merits, that while [*2]CPLR 4106 requires that alternate jurors be discharged after the final submission of the case, there was no substitution here of the two alternates for regular jurors after deliberations had begun, the circumstance that invalidated the jury deliberations in Gallegos v Elite Model Mgt. Corp. (28 AD3d 50, 54-55 [2005]), and that all eight jurors deliberated as a group from start to finish and reached a verdict together.

We reject defendant's contention that the court erred in giving a missing witness charge due to her failure to testify. While much of the trial indeed focused on the amount of attorneys' fees that would constitute a reasonable award, an issue about which defendant would not likely have had anything meaningful to contribute, the issue of whether attorneys' fees were properly awardable at all was also submitted for the jury's consideration, an issue that turned, at least in part, on the actions that defendant took to have the remaining plumbing violation removed. As plaintiffs' lay witness testified that defendant was not cooperative in producing the documents necessary to certify removal of the plumbing violation, defendant could be expected to dispute those facts or to explain why she cannot (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

We have considered defendant's remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Nardelli, Abdus-Salaam and RomÁn, JJ.

[Recalled and vacated by unreported motion date Aug. 17, 2010, see 2010 NY Slip Op 79686(U).]