407 E. 81 Realty LLC v Creighton

[*1] 407 E. 81 Realty LLC v Creighton 2012 NY Slip Op 51405(U) Decided on May 15, 2012 Civil Court Of The City Of New York, New York County Gonzales, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 15, 2012
Civil Court of the City of New York, New York County

407 East 81 Realty LLC, Petitioner

against

Eileen A. Creighton, Respondent "John Doe" and/or "Jane Doe" Respondents-Undertenants.



65634/09



Rose & Rose for Petitioner

David Haberman, Esq.

291 Broadway, 13th Fl

New York, NY 10007

(212) 349-3366

Fishman & Neil, LLP for Respondent

James Fishman, Esq.

305 Broadway, Ste. 900

New York, NY 10007

(212) 897-5840

Cheryl J. Gonzales, J.

Petitioner commenced this holdover proceeding on or about April 17, 2009, after terminating respondent's tenancy in a notice dated March 17, 2007. The notice terminated respondent's rent stabilized tenancy effective April 5, 2009, on the ground that respondent failed to comply with the notice to cure which required respondent to remove all illegal occupants from the apartment and stop subletting the apartment. Respondent interposed an answer asserting that she was the sole occupant of the apartment, and counterclaimed for attorney's fees. The case first appeared on the calendar on April 16, 2009, and in an order dated September 30, 2010, Judge Scheckowitz granted petitioner's motion for an order granting leave to discontinue the proceeding with prejudice, on condition that petitioner pay respondent's costs and reasonable attorney's fees, and respondent's cross motion was also granted. [*2]

At a hearing to determine respondent's attorney's fees and costs, respondent sought $28,397.50. Respondent's counsel was first retained on May 1, 2009. Respondent's attorney James D. Fishman testified at the hearing, and introduced into evidence his billing records which reflected his hourly rate at $375.00 per hour, his senior associate billed at $250.00 per hour, his junior associate billed at $200.00 an hour, and the law graduate at his firm billed at $150.00 per hour. Petitioner did not object to the rates charged by respondent's counsel and his associates, except the hourly rate billed for the law graduate.

On May 26, 2009, respondent received petitioner's Bill of Particulars in response to her demand which was served on May 2, 2009. Respondent made the first motion seeking to compel petitioner to serve a proper Bill of Particulars. Petitioner subsequently moved for an order granting leave to conduct discovery and directing respondent to pay use and occupancy. In an order dated October 8, 2009, Judge Rashford noted that petitioner agreed to provide a description of the person who was allegedly subletting the apartment, and found that the rest of respondent's demand for a Bill of Particulars was overly broad. Petitioner's request for discovery was also denied, and its request for use occupancy, pendente lite, was granted.

In a motion returnable on November 20, 2009, respondent moved for an order granting summary judgment based on respondent's claim that the predicate notice and the petition failed to state the facts upon which the proceeding is based. Respondent also sought dismissal on the ground that petitioner failed to provide a description of the alleged sublessee. In an order dated March 3, 2010, Judge Scheckowitz denied the motion for summary judgment, and noted that the description "[f]emale, age 35-40, dark hair" as provided by petitioner's counsel in a fax dated December 8, 2009 was insufficient. Petitioner was directed to provide a more complete description within 14 days of service of a copy of the decision with notice of entry.

After serving the aforementioned decision with notice of entry on March 12, 2010, pursuant to Judge Scheckowitz' directive, respondent made another motion to dismiss the proceeding based on petitioner's failure to comply with Judge Rashford's order to provide a description of the person who was allegedly subletting the apartment. Respondent maintained that petitioner's unsworn fax of December 8, 2009 was insufficient, and petitioner failed to provide an adequate description even after service of the order of March 3, 2010 with notice of entry. Judge Scheckowitz denied the motion in an order dated May 13, 2010, based on petitioner's submission of a supplemental response dated April 20, 2010 stating that petitioner lacked knowledge of the occupant's height, weight, and ethnicity.

Subsequently, in a motion returnable on June 24, 2010, petitioner moved to discontinue the proceeding with prejudice. Respondent then cross moved for an order conditioning the discontinuance upon the payment of respondent's attorney's fees. The court granted both motions, and set the matter down for a hearing on attorneys's fees.

The last motion in this case was made by petitioner seeking to quash respondent's subpoena for Terrence Lowenberg, a member of petitioner's LLC, to appear at the hearing on attorney's fees. This motion was granted on May 23, 2011. [*3]

Petitioner argues that respondent did not prevail on the merits, nor did respondent prevail on her motion to dismiss the proceeding. In addition, petitioner also pointed to errors in respondent's billing records. Respondent conceded that the first three entries on the time record were included in error. Petitioner also objected to the billing entries related to the respondent's attorney's conference with respondent's sister. In addition, petitioner objected to respondent's requests for fees on fees, and billing for time spent redacting records. Petitioner maintained that the time expended on respondent's motions should be viewed in light of the outcome on the motions. Also, petitioner pointed to the fact that respondent's counsel's associates did not testify as to their billing records.

Respondent contends that the errors in the billing records constitute 1.5% of the total bill. Further, respondent asserts that there was no determination on the merits because petitioner did not want to go to trial, and respondent's motions served to advance the case to its conclusion. Respondent made three motions seeking the description of the alleged sublessee, and ultimately petitioner failed to provide any details on the scope of their search for information on the alleged occupant. Respondent's counsel explained that he spoke with respondent's family members in preparation for trial, and had to answer many questions from his client based on the number of motions, and the amount of time that this case was taking. Further, respondent's counsel maintained that the redaction of the initial hand written time records which were offered in support of the billing records created from the handwritten records was necessary to excise records and information on other clients. In addition, respondent maintained that fees on fees are recoverable.

This matter had been on the court's calendar for approximately 14 months before the final determination was reached. This proceeding appeared on the court calendar approximately 14 times, and six motions were presented to the court before the case concluded. It is unclear what the basis of petitioner's knowledge was when the proceeding was commenced. Petitioner provided an incomplete description of the alleged sublessee in December 2009, and then moved to discontinue the proceeding in June 2010, fourteen months after bringing the proceeding. Respondent made several motions during the pendency of the proceeding which would not have been necessary had petitioner acted sooner. Therefore, this court finds that although the determinations on respondent's motions were not 100% favorable to respondent, there was no motion that was unrelated to the major issue in this case, and, in fact, the motions served to advance the case to its ultimate outcome.

The court granted petitioner's motion to discontinue this proceeding with prejudice, and pursuant to CPLR§3217(b) conditioned the discontinuance upon payment of respondent's costs and reasonable attorney's fees. Petitioner's assertion that there was no determination on the merits or with regard to the prevailing party does not impact on the award of attorney's fees and costs in the instant matter since the award was a condition for petitioner's request to discontinue the proceeding.

"The award of reasonable counsel fees is within the sound discretion of the trial court" (Ebrahimian v Long Island Railroad, 269 AD2d 481 [2nd Dept 2000]). Reasonable attorney's fees are considered to be "a fee which represents the reasonable value of the services rendered" [*4](Diaz v Audi of America, Inc. 57 AD3d 828 [2nd Dept 2008]). The factors considered include "(1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the questions presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and the benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved " (Diaz v Audi of America, Inc., supra,citing In re Freeman's Estate, 34 NY2d 1[1974]).

The issue at stake in this proceeding was respondent's right to continue to occupy her home, and respondent maintained that right at the conclusion of the proceeding after several motions made by her attorney. Petitioner did not object to the hourly rates charged by respondent's counsel or his associates, but challenged the rate charged for the law graduate's work, and the amount of time that was expended on the case based on respondent's counsel's billing after the proceeding was discontinued with prejudice. Petitioner raised no issues related to the skill of respondent's counsel and the complexity of the case.

The law graduate's work was billed at $150.00 per hour. However, under the Retainer Agreement[FN1], the rate set for a law graduate was $125.00 per hour. The Retainer Agreement also provided that rates contained in the Agreement were discounted, and the rates would not be limited to those rates on an application for attorney's fees. Based on her resume, the law graduate, Luna Bloom, graduated New York Law School in 2009 with a Juris Doctor degree, summa cum laude. Her resume reflected that she passed the New York State bar in July 2009, was awaiting admission to the bar after passing the July 2009 bar examination, and had legal experience dating back to March 2007. The billing record shows five entries for the law graduate: .60 hrs billed on 11/18/09 to prepare exhibits and copy motion; 2.50 hours billed on 6/30/10 to prepare cross motion; 2.00 hours billed on 7/9/10 to prepare cross motion; .40 hours billed on 7/16/10 to prepare notice; and .60 hours billed on 7/27/10 to finalize and serve summary judgment motion. This represents a total of 6.30 hours during the course of the proceeding with most of the time spent on working on respondent's cross motion seeking attorney's fees as a condition for petitioner's discontinuance of the proceeding.

Petitioner's claim that there is not a sufficient basis to consider the bills for the work completed by the associates based on the associates' failure to testify is without merit. An attorney who worked on the case and has sufficient knowledge of the case, and the billing practices of the firm is competent to testify in support of a party's claim for legal fees. In Nestor v Britt, 16 Misc 3d 368 (2007), the court credited the testimony of one attorney, the junior partner, who worked on the case, and introduced billing records for both the junior partner and senior partner who rendered their legal services on the case. In fact, petitioner's proposition would only serve to increase the amount of legal fees due if every person who worked on a case were required to testify in support of the claim for fees.

Petitioner also raised the issue that respondent's counsel's billing records include fees for [*5]preparing for the attorney fees hearing. It is well settled that an attorney is entitled to fees incurred in the additional time spent in proving the attorney's fees claim (Kumble v Windsor Plaza, 161 AD2d 259 [1st Dept 1990]; Troy v Oberlander, 181 AD2d 557 [1st Dept 1992]), and this argument has no basis.

Respondent's request for an award of attorney's fees in the amount of $28.396.50 is based on counsel's billing for 38.9 hours by Mr. Fishman at the rate of $375.00 per hour; 39.7 hours billed for work completed by senior associate, Ms. Crumiller, at the rate of $250.00 per hour; 14.85 hours for work completed by junior associate, Ms. Adnonizio, at the rate of $200.00 per hour; and 6.1 hours billed for work completed by the law graduate, Luna Bloom, at the rate of $150.00 per hour. The Retainer Agreement provided that the attorney's hourly rate was set at $375.00; the senior associate's hourly rate was $325.00; the junior associate's hourly rate was $200.00; a law graduate's hourly rate was $125.00; and, a law student or legal assistant's hourly rate was $95.00.

Upon review of the billing records, as agreed, the first three entries dated April 3, 2009, 1.15hrs, April 6, 2009 .15 hours and April 6, 2009, .15 hours which total $290.00 in the bill record are excluded. In addition, the court excludes fees incurred for time spent drafting and serving the subpoena served by respondent on a member of petitioner's LLC for appearance at the fee hearing, preparing opposition papers to the motion to quash the subpoena and the time spent in court on the motion. This subpoena did not contribute to respondent's claim for attorneys fees in any way, and petitioner's motion to quash the subpoena was granted.

Based on the nature of the work completed by the law graduate, this court finds that the hourly rate billed was reasonable for the time spent on preparing the motion papers. However, the billing for copying papers should be billed at the billing rate for a legal assistant.

With regard to the amount of time billed for preparing for the attorney's fees hearing, respondent's counsel included prep time for every adjourned date of the fees hearing. After the initial prep time, no more than a review should have been necessary, and the amounts billed are reduced accordingly.

In addition, the court also reduces the amounts billed for preparation of the motion papers in this case based on the amount of time spent on the motions which were worked on by various attorneys in order to adjust the time spent to a reasonable amount.

Accordingly, based on the foregoing, respondent is granted a judgment in the amount of $22,393.00 for attorney's fees incurred in this case.

This constitutes the decision and order of this court.

DATED: May 15, 2012_____________________

Cheryl J. Gonzales, JHC Footnotes

Footnote 1: Respondent's Exhibit 3.