Board of Mgrs. of One Strivers Row Condominium v Giwa

Board of Mgrs. of One Strivers Row Condominium v Giwa 2015 NY Slip Op 09213 Decided on December 15, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 15, 2015
Friedman, J.P., Andrias, Gische, Kapnick, JJ.
16407 153193/12

[*1] The Board of Managers of One Strivers Row Condominium, Plaintiff-Respondent,

v

Hafeez Giwa, Defendant-Appellant.

Law Office Of Jesse Hoberman-Kelly, New York (Jesse Hoberman-Kelly of counsel), for appellant.

Lasser Law Group, PLLC, New York (Stephen M. Lasser of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Cynthia S. Kern, J.), entered May 13, 2014, which granted plaintiff's motion to confirm a Special Referee's report on attorneys' fees and late fees and directed that judgment be entered against defendant in the aggregate amount of $42,037.32, unanimously affirmed.

Although defendant paid his outstanding common charges prior to the court's determination of plaintiff's motion for summary judgment, pursuant to the bylaws of the condominium, plaintiff was still entitled to seek late charges and its reasonable attorneys' fees in connection with initiating and prosecuting this case (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]; Frisch v Bellmarc Mgt., 190 AD2d 383, 390 [1st Dept 1993]; see also Matter of Purcell v Jefferson County Dist. Attorney, 77 AD3d 1328 [4th Dept 2010]). The record demonstrates that defendant had an opportunity to be heard "at a meaningful time and in a meaningful manner" on the issues, and his due process rights were not violated (Matter of Kigin v State of N.Y. Workers' Compensation Bd., 24 NY3d 459, 469 [2014] [internal quotation marks omitted]).

Defendant's payment in full of the outstanding common charges, while plaintiff's summary judgment motion was pending, effectively amounted to an admission that he owed the amounts sought. Thus, while plaintiff's summary judgment motion was denied as moot, it was proper for the court to send the matter to the Special Referee for a determination of attorneys' fees and late charges pursuant to the condominium bylaws.

Defendant's challenge to the amount of attorneys' fees and late fees awarded is not properly before this Court, since it was not raised until his reply brief (see Matter of Erdey v City of New York, 129 AD3d 546 [1st Dept 2015]). In any event, the amount of fees awarded is supported by the record and is not unreasonable.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2015

CLERK