25 W. 68th St. LLC v Whitman
Annotate this CaseDecided on November 30, 2011
Civil Court of the City of New York, New York County
25 West 68th Street LLC, Petitioner-Landlord,
against
Marina Whitman, AS EXECUTRIX OF THE ESTATE OF JOSPEH LEDMAN 25 West 68TH Street, Apt. 5F NEW YORK, NY 10023, Respondent-Tenant.
L & T 96123/04
JUDITH M BRENER, ESQ
Attorneys for Petitioner
By: Jeffrey M Goldman, Esq.
640 Fifth Avenue, 3rd Floor
New York, NY 10019
(212) 265 2171
JAY STUART DANKBERG
Attorney for Respondents
1220 Broadway, Suite 502
New York, NY 10001
(212) 967-1114
Sabrina B. Kraus, J.
BACKGROUND
The above captioned summary holdover proceeding was commenced under Index No. 96123/04 (2005 Proceeding) by 25 WEST 68TH STREET LLC (Petitioner) againstthe Estate of Jospeh Ledman, and undertenants seeking to recover possession of 25 West 68TH Street, Apt. 5F, [*2]NEW YORK, NY 10023 (Subject Premises) after the death of the rent control tenant of record.
A trial took place from March through July of 2006. On July 31, 2006, after trial, the Court found that Brooke Whitman (Respondent) had established the right to succeed to the tenancy of Jospeh Ledman, and awarded Respondent a judgment of possession as against Petitioner. Petitioner appealed the ruling of the trial court. The Appellate Term, First Department issued an order on July 28, 2008, affirming the ruling of the trial court. There is now pending before this Court motions for attorneys' fees and sanctions in this proceeding and a prior case between the parties from 1999 under Index Number 101294/99 (The 1999 Proceeding).
THE PENDING MOTIONS
Respondent seeks an order restoring both proceedings to the calendar and awarding Respondent attorneys' fees, as the prevailing party, in this proceeding, as well as fees incurred in the successful defense of the 1999 Proceeding.
Petitioner cross-moves for an order in both proceedings for the imposition of sanctions against Respondent's counsel. Petitioner asserts that Respondent's counsel previously moved for the identical relief sought in the pending motions on November 2, 2009, and said motions were denied based on Respondent's failure to appear on December 7, 2009.
Petitioner argues that Respondent's motions in addition to being frivolous, are untimely, and that Respondent has abandoned his claim for attorneys' fees in the proceedings by waiting over three years since winning on appeal to make this motion.
THE 1999 PROCEEDING
The petition was dated September 8, 1999. Respondent appeared by counsel and filed an answer dated December 1, 1999. The answer asserted substantially the same defenses to the petition as the answer in the 2004 Proceeding. After some motion practice, on September 13, 2000, the proceeding was marked off calendar pending discovery. Respondent's deposition took place on March 1, 2001.
On April 15, 2004, Petitioner moved for summary judgment, and Respondent cross-moved for an order dismissing the proceeding and awarding Respondent attorneys' fees. Pursuant to a decision and order dated May 28, 2004, the Court (Elsner, J.) dismissed the proceeding without prejudice. The decision and order provided in pertinent part: Should a new proceeding be commenced respondent shall be entitled to interpose those defenses available to him at the time when the notice of termination was served July 30, 1999, which formed the basis for this proceeding in addition to other appropriate defenses. This order is without prejudice to respondent's rights to claim legal fees incurred herein as a counterclaim in any new proceeding commenced by petitioner on the same grounds as this proceeding. Should petitioner fail to commence such proceeding by September 1, 2004, respondent may move for such fees herein.
On September 28, 2004, Respondent moved for a judgment for attorneys' fees based on the Court's May 28, 2004 order. Respondent's motion for attorneys' fees was made pursuant to 22 NYCRR 130-1.1 et seq and the alleged frivolous conduct of Petitioner in the proceeding. No claim for attorneys' fees pursuant to RPL § 234 was made.
Pursuant to a decision and order dated October 6, 2004, the Court granted Respondent's motion. The Court held:
The court determines that the motion before it was interposed in a timely manner. [*3]As of the date of argument, petitioner had not commenced a new holdover proceeding against respondent. Commencement occurs, not when a notice is served, which is a predicate to a proceeding, but rather when a notice of petition and petition are served. The court finds that while neither side in this litigation can be determined to be the prevailing party, petitioner's litigation strategy, namely imposition of a motion for summary judgment and a motion seeking restoration of this proceeding to the courts calendar three years from the date discovery was completed, was prejudicial to respondent and caused him to incur unnecessary fees. Based on the forgoing, this matter is set down for a hearing to determine reasonable legal fees incurred by respondent from March 1, 2001 when depositions were completed. The matter is restored to the calendar for said hearing on November 4, 2004 at 9:30 AM. (Emphasis added).
The hearing date was adjourned from November 4, 2004 to December 7, 2004, and then again to January 27, 2005. On January 27, 2005, Respondent failed to appear and the Court denied the balance of the relief sought based on the attorneys' fees application pursuant to a written decision and order which provided "Motion denied no appearance movant at 11:45 am."[FN1]
RESPONDENTS' MOTION FOR ATTORNEYS' FEES
INCURRED IN THE 1999 PROCEEDING
Respondents request for attorneys' fees incurred in The 1999 Proceeding is denied as that relief was previously sought and addressed by the Court in the context of that proceeding as discussed above.
At this time, there is no basis for Respondent to make consolidated motions for relief in the two proceedings. That has been the case since Judge Elsner's October 6, 2004 decision.
To date, Respondent has not moved to vacate his default in appearing for the hearing in the1999 Proceeding. The default stands. Additionally, the pending application ignores the other holdings of Judge Elsner's October 6, 2004 decision and finding there was no prevailing party and limiting Respondent's claim to fees to those incurred from March 1, 2001.
The Court notes this is Respondent's fourth motion for the attorneys fees in the 1999 Proceeding to date.
Below the Court has inserted a time line of events in the two proceedings, which highlights the dates of the four applications in the context of the two litigations before addressing the remaining requests for relief.
TIME LINE
1999 PROCEEDING
9/8/09Proceeding Commenced
9/13/00Proceeding Marked off calendar pending discovery
3/1/01Respondents EBT
4/15/04Parties move for accelerated judgment
5/28/04Proceeding Dismissed [*4]
9/28/04Respondent's 1st motion for attorneys fees
10/6/04Court grants Respondent's motion for fees and calendars hearing for November 4, 2004.
11/4/04Attorneys fees hearing adjourned to 12/7/04 at request of Respondent's Counsel pursuant to affirmation of engagement
12/7/04Hearing adjourned to 1/27/05
1/27/05Respondent's Counsel defaults on appearance for hearing.
2004 PROCEEDING
11/10/041st Court Date
7/31/06Trial Concluded & decision rendered in favor of Respondent
12/8/06Respondent's 2nd motion for fees in1999 Proceeding made in conjunction with 1st motion for fees in 2004 Proceeding.
1/9/07Appellate Term Stays attorneys' fees hearing in 2004 proceeding through
January 17, 2007. Motions are marked off calendar.
7/28/08Appellate Term affirms trial court decision in 2004 proceeding.
11/2/09Respondent's 3rd motion for attorneys fees in the 1999 Proceeding and 2nd motion for attorneys fees in the 2004 proceeding.
12/7/09Motions denied based on Respondent's Counsel's failure to appear.
9/7/11Respondent's fourth motion for attorneys fees in the 1999 proceeding and 3rd motion for attorneys fees in 2004 Proceeding.
RESPONDENTS' MOTION FOR ATTORNEYS' FEES IN THE 2004 PROCEEDING
On December 8, 2006, Respondent moved for attorneys' fees in both proceedings, and Petitioner cross-moved for a stay pending appeal. The motion and cross-motion were adjourned to January 10, 2007. On January 9, 2007, the Appellate Term issued an order staying the determination of the motion for attorneys' fees in the 2004 proceeding only, through January 17, 2007, the return date of a motion for a stay before the Appellate Term.[FN2]
The motions in both proceedings were marked off calendar pending the stay, although there was no stay issued relative to the 1999 Proceeding.
On November 2, 2009, Respondent moved for a second time for attorneys' fees in the 2004 Proceeding. The motion was adjourned first to November 25, 2009, for service of additional papers, and then again to December 7, 2009. On December 7, 2009, Respondent's motion was denied based on Respondent's failure to appear in support of the motion. To date Respondent has not moved to vacate said default. [*5]
Respondent now moves for a third time for an order finding he is entitled to attorneys' fees in the 2004 Proceeding. Respondent's motion is denied. As Respondent already moved for the relief sought herein, and said motion was denied, most recently on December 7, 2009, Respondent may not simply remake the identical motion, nearly two years later, without addressing the default and seeking to vacate the default on the prior application.
Based on the foregoing, Respondent's motion is denied.
PETITIONER'S CROSS-MOTION FOR SANCTIONS
Respondent's moving papers appear to border on the frivolous in several respects. The papers seek relief that was previously sought and denied. Counsel states in his moving papers that his last motion for attorneys fees was in 2006, but does not acknowledge the 2009 application for fees in this proceeding.
Respondent's counsel also incorrectly asserts that he is entitled to seek fees for the 1999 Proceeding jointly with fees incurred in the 2004 proceeding, when in fact Judge Elsner's October 6, 2004 decision and order held that said fees were to be sought within the context of that proceeding. Respondent's counsel fails to acknowledge the subsequent denial of fees based on his default in appearing for the scheduled hearing. These inaccuracies continue through Respondent's motion papers.
Counsel acknowledges in his moving papers that there was a prior motion for fees in the 1999 Proceeding, and that the hearing on fees was calendared for November 4, 2004 and adjourned at his request. However, instead of acknowledging his default and the subsequent denial of further relief based on the default, he asserts "the legal fee hearing never actually was calendared or took place (Par 18 & 19 of August 15, 2011 affirmation)." As noted above, this is not accurate.
After the issue was raised by his adversary, Respondent's counsel should have taken a more careful look at the procedural history of the cases, and the rulings made on the prior applications for relief. Having done so, Counsel should have withdrawn some the pending applications for relief.
Instead, Counsel filed additional papers accusing his adversary of improper conduct, suggesting repeatedly in his November 3, 2011 affirmation that the Court refer his adversary to the Disciplinary Committee, disregard Petitioners papers and possibly sanction his adversary. The Court finds no basis in the underlying papers to suggest any impropriety on the part of counsel for Petitioner pertaining to the pending motions. Petitioner's frustration in having to oppose again applications previously made, years after Respondent's defaults resulted in the denial of those applications is to be expected.
Counsel for Respondent is cautioned in the future to take greater care when making multiple applications for relief, to fully and accurately set forth the prior rulings in any subsequent request for relief, and where the application has been previously made and denied based on Respondent's default, as is true in both of the proceedings discussed herein, this fact should be forthrightly acknowledged by counsel, and the appropriate application would be to seek to vacate the default.
Additionally, as there has been no basis to make consolidated motions in the two proceedings since Judge Elsner's October 6, 2004 decision, nearly seven years ago, no further consolidated applications would be appropriate. [*6]
Notwithstanding the foregoing, the Court notes that these prolonged litigations were contentious, and both parties have been found by the court to act inappropriately at times.Based on the totality of the circumstances surrounding the litigation, including the fact that the court files were in archives until recently and not subject to full examination, the Court does not find that the behavior of Respondent's counsel rises to the level of being sanctionable, or that there is a basis to conduct a hearing on the issues discussed above.
However, this denial is without prejudice to Petitioner's right to renew its applications for sanctions in the event of further improper motion practice by Respondent's counsel in either proceeding.
Based on the foregoing Petitioner's cross-motion for sanctions is denied without prejudice.
This constitutes the decision and order of this Court.[FN3]
___________________________
SABRINA B. KRAUS
Dated: New York, New York
November 30, 2011
Footnotes
Footnote 1: The Court requisitioned the file from the 1999 Proceeding and takes judicial notice of its contents in rendering the underlying decision.
Footnote 2: Although the moving papers assert a copy of the decision on the motion for a stay is annexed as Exhibit 3, in fact no such order is attached. Exhibit 3 consists only of a copy of the interim stay through January 17, 2007. The Court has not been provided with a copy of the decision on the motion.
Footnote 3: The Court disclosed all potential conflicts in retaining jurisdiction of the motions and the conflicts were waived by counsel on the record on November 17, 2011.
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