1010 Tenants Corp. v Hubshman

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1010 Tenants Corp. v Hubshman 2012 NY Slip Op 30221(U) January 27, 2012 Sup Ct, NY County Docket Number: 602966-2009 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON 113112012 [* 1] .' I I I [* 2] _- Q E C I ~ K ) ~ R A uwm JN ~ Index No.: 602988-2009 Saq. No.: 004 1010 Tenants Carp., Plafntiff(a)l -ageinst- PRESENT: Hlon. J U m JnG h h Q Barbara Hubshman, -- Defendant (8). x Recitation, BS requlred by CPLR 2219 [a], of fhepapers consldemd In the mvlew of this (these) motiof?(s): Papers Numbered Def'sOSCw/BHWaffirm,exhs .......................................... 1 PWs xlm (dlwvery) w/SNV affirm, exhs ................................... 2 Oeps reply w/BHW affirm ............................................... 3 Upon the hmgaing papem, the d w s h and order of the mutt is es fobws: This actlon for a declaratoryjudgment has been dedded. In its dedsion, order and Judgment dated September 22,201 1 the court granted defendant Barbara I Hubshman ("Hubshman) reverse summary judgment on her P' and 3 counterclafma ' against plaintiff ? 010 Tenants Cow. ("coop" sometimes "Imsar"). coop's m The s motion for summary judgment was denied in all rewpect8 and the complaint was diemls8ed. Hubshman now moves for summaryJudgment on her sole remaining caunterdafm which fsfor a dsclamtbn that the coop breached the proprietary lease and that she,as the pravaillng party, Is entMed to have her reasonable legal feas and disbursements paid for by the coop. The caop opposes Hubshman's motion and ha8 cross moved for discovery. -Page 1 of& [* 3] Ghren the extensive hi~tory this case, lnduding the court s prior order on of summary Judgment,the reader ie presumed to be familiar wlth t i case and all prior hs orders. Arguments Paragraph 28 of the proprbtary lease (Relmbumernent of Lea8ots Expenses) provides that: If the Lessee shall at any time be in default hereunder and the Lassor shall incur any expenses (whether paid or not} In performing acts which the Lessee i requlretd to s perform, or In institutingany action or prmeeding based on such default, or defendlng, or asserting a counterclaim In, any action or proceeding brought by the Lea-, the expanses thereof to the Lessor, Including reasonable attorneys fees and disbursement, shall be paid by the Lessee to the Lessor, on demand as additional mnt. It Is unrefuted that desptte the language allowing the IessoP to mcover its legal fees from a lessee, a lessee may also recover his her legal fees from the coop, If it ia determined that the lessee is the prevailingparty (RPL 3 234 Yenants right to recover attornew fees In actions or summary proceedings arlslng out of residential leases ). fha coop s opposition to Hubshman s mation focurres on the following: 1) attorneys fees am not available in this action for declaratory relief, 2) even if they are, each skle prevafled in a meaningful way, and 3) there has been no discovery on the lasue o f damages. In the court s prior order dedding the coop s cmts motlon for summary judgment, the court wrote the following: ORDERED that plaintis motion for summary judgment is denied; and It I s -Page 2 of 6- [* 4] further ORDERED that the court has searched the record and granted the nonmoving defendant summary judgment In her favor; and it is further ORDERED, DECLAREDAND ADJUDGED that: The coop has the authority and responsibility for repairs, as set forth in paragraph 2 of the proprietary lease. If the coop determines that pursuant to Uw terms of the proprietary lease, work is required to be performed on the roof terrace of Hubshman'a apartment, the coop shall prepare the plans and specificatlone for such work, Including protection and Momtion of the garden, and obtain a proposed contract for the work to be done wfth professionals of Its mi choosing. The coop shall then submk tts proposed contract to Hubahman. Hubshman shall then have fnre (5) business days after receipt of such contract wlthln which to notify the mop in writing whether or not she elects to perForm such work. If Hubshman 30 elects, the coop ahall, upon completfon of such work, reimburse Hubshman for her actual costs for such work up to the amount of the proposed contract originally obtained by the Coop and presented to Hubshman. If an emergency requlres immediate repairs, then the coop may fmmedlateiy perform such work as is necessary to deal with the emergency and thereafter the foragoing providans shall be applicable to the performance of any additional woe in connection wtth the condition which gave rlss to the emergency. and the court Issued its decbion, order and Judgment and a permanant Injunction. A8 B general rule, attorneys fees am not available in an adion h r a dedamtoty judgment where the lessee is simply seeking a declaratlon as to their rights and there I s no default alleged m n v. 941 Park AvQ.,32 A.D.3d 2 [ l ~ 1 Dept 20061). In the case a bar, the wop sought a declaratlon that "defendant [Hubshman] i in default of hsr t s Proprietary Lease with the Co-op, In that she has refused to allow the Co-op to remove the roof garden on the tarrace outside her penthouse apartment to repair the roof, [* 5] despite the fact that there are leaks In the apartment below the terrace, and desptte the fact that the shareholder in the aparbnent k l b w has beon unable to complete her renovations and move In" (complaint vl), Thus, attorney fees are an avalfable remedy to the defendant under the applicable lease provisions, tf Hubshman is the prevailing Paw In declding whether a party has "prevailed," the court oonaMer8 such things as the "true scope o the dispute Iftlgated, followed by a comparison of what was achieved f within that scope" Excelsior 57th Corn. v W I ~ , A.D.2d 146, 147 [ i d Dept 227 lSS6D. Although the coop argues that each slde has prevailed in a meaningful way, this is an overly optlmlstk vlew of the court's judgment. Hubshman moved for a preliminary injunction, the coop cross moved for summary judgment and then Hubshman asked the court to search the record. In saarchhg the record and grantlng Hubshrnan reverse) summary judgment, Hubshman ia clearly the prevalllng party. The murt expre8siy denied the coop's m d o n for aummary judgment. In making that decision, the court found that the relief sought by Hubshman I her counterclaims was n mom closely in line with the parties' obligatlons under the proprietary lease. Thus, any claim that thls actfan has resulted In a "draw' and not a dear victory, la rejected as a reason to deny defendant% motlon for attorneys' fees. Although the court believes that llmked discovery may be needed before ttre bsue of attorneys' fees can be heard, the motion a bar is for summary judgment on the t Issue of liability. Consequently, Incomplete discovery on the Issue of damages Is not a reason to deny defendant summary Judgment, if there I otherwise no Issue of fact to be s tried. Consequently, the court grants Hubshman summary judgment on the issue ot -Page 4 of 6- [* 6] llablllty since she has met her burden and the coop has not raised Issues of fact waw v. prcmect HOSQ., 68 N.Y.2d 320,324 [1986]; 2 - m of ypdr,40 N.Y.2d 557 [lQSO]). The issue of dernagss (i.s. attorneys faee that Hubshman may recover from the mop) must be head. The hearing shall be before a special referee who shall report hi8 or her recommendations to the court. The Issue of what discovery, if any, ia available on the limited issue to be tried,ia beat addressed by the Referee and Is also within the scope of this reference. Hubshman shall serve this order on the plaintiff and the OfWeof the Spacial Referee no later than twenty (20) days after It a p p m as entered an SCROLL (Supreme Court Records On-line Library) so the hearing can be scheduled. Conclusion In accordance with the foregolw it is hereby ORDERED that defendant Barbara Hubshman'smotion for summary judgment on the Issue of l~abiftty her flrst counterclaim ia granted; and it is further on ORDERED, DECLARED AND ADJUDGED that defendant Barbara Hubshman, as the prevailing party in this action, Is entttled to recover her reasonable attorneya' fees and dksbursements from the plaintiffltessor, I010 Tenants Cop.; and It ler further ORDERED that the Issue of what reasonable legal fees and disbursements defendant Is entitled t I raferrwd to a Special Referee who shall hear the matter os referrad and report to the court his or her recommendations; and it Is further ORDERED that the Issue of discovery pertaining to the limited issue referred (1.9. legal few and disbursements Hubshman has jncurred) is a b within the scape of thls refemnm; and it i further s -Page 5 of 6 [* 7] ORDERED that Hubshman shall serve this order on the plaintffi and the office of tha Special R e f m e no later than twenty (20) days after It appears as entered on SCROLL (Supreme Court Records On-line Ubmry); and it Is also ORDERED that any relief requested but not addregsed I hereby denled; and it s b further ORDERED that thls constitutes the declsion, order and Judgment of the court DW: NswYork,NewYork January 27,2012 So Ordered: & Hon. Judlth UNFlLEO uDGm)CI T w m This . iudament has not been entered by the and notice of entry cannot be served baaed h e m WD obtaln entry, crwnsal or authorized representathnd appear in person at the Judgment Clerk's Desk I 141B),

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