Board of Mgrs. of Brightwater Towers Condominium v Lukashevskaya
Annotate this CaseDecided on December 5, 2012
Supreme Court, Kings County
Board of Managers of Brightwater Towers Condominium, Plaintiff,
against
Bella Lukashevskaya; and JPMORGAN CHASE BANK, N.A., Defendants.
27011/09
Attorneys for Plaintiff
Thomas P. Higgins, Esq.
Higgins & Trippett LLP
The Bar Building
36 West 44th Street, Suite 911
New York, New York 10036
(212) 840-8334
Attorneys for Defendant Lukashevskaya,
William A. Gogel, Esq.
Agulnick & Gogel, LLC
8 Bond Street - Suite 303
Great Neck, NY 11021
(516) 466-6300
Francois A. Rivera, J.
By notice of motion filed on March 14, 2012 under motion sequence number four, plaintiff Board of Managers of Brightwater Towers Condominium (hereinafter the Board) has moved for an order: (1) confirming in part and disaffirming in part a referee's report pursuant to CPLR 4403; (2) fixing attorney's fees due to the Board; and (3) for a judgment of foreclosure and sale pursuant to RPAPL 1351.
Defendant Bella Lukashevskaya (Lukashevskaya) has opposed the motion. Defendant JPMorgan has not appeared in the action.
BACKGROUND
The Board manages the affairs of Brightwater Towers Condominium (hereinafter Brightwater) located at 601 Surf Avenue, Brooklyn, New York. Lukashevskaya owns residential unit 15R at Brightwater. On October 26, 2012, the Board commenced the instant action to [*2]foreclose upon a condominium common charge lien by filing a summons, complaint and notice of pendency with the Kings County Clerk's office. The common charge lien was filed against unit 15R pursuant to Article 9-B of the Real Property Law (the Condominium Act).
Lukashevskaya defaulted in answering the complaint.
On November 16, 2011, the court appointed Mary Noe, Esq., as referee (hereinafter the referee) to compute the amounts due to the Board under the lien and to ascertain whether the unit should be sold in parcels. The Board provided affidavits and documents to the referee to support its claim that, as of January 9, 2012, Lukashevskaya owed $26,573.84, excluding attorney's fees
On March 9, 2012, the referee filed her sworn report with the Kings County Clerk's office. The referee computed the amount due to the Board for assesments to be $1,103.88, but rejected the Board's request for late fees, bad check charges, additional common charges, legal fees, air conditioning fees and parking fees.
The Board has moved to confirm that part of the referee's report which computed the amount due to the Board for assessments to be $1,103.88, and to disaffirm the rest. The Board, has alleged, among other things, that the referee exceeded the scope of her authority in +questioning the validity of the charges that she had disallowed.
By order dated September 25, 2012, this Court ordered the parties to clarify an ambiguity in the referee's report pertaining to her receipt of testimonial evidence. It was unclear whether the testimony provided to the referee was limited to affidavits or included oral testimony. On October 15, 2012, the Board submitted a supplemental affirmation of its counsel which clarifed that the testimony was limited to affidavits.
MOTION PAPERS
The Board's motion papers consist of a notice of motion, an affirmation of counsel, and twelve annexed exhibits labeled A through L. Exhibit A is the instant summons and complaint and three affidavits of service. Exhibit B is the notice of pendency of action, and three affidavits of service. Exhibit C is the notice of appearance of defendant J.P. Morgan Chase Bank, N.A., dated June 24, 2011. Exhibit D is the order of reference and related relief, dated November 16, 2011. Exhibit E is the referee's oath and report of amount due to plaintiff, dated January 13, 2012, and an affidavit of service.Exhibit F is the affidavit of plaintiff of amount due under common charge lien, dated January 9, 2012. Exhibit G is the supplemental affidavit of plaintiff of amounts due under common charge lien, dated January 13, 2012. Exhibit H is the order of this court, dated November 16, 2011, which among other things, appointed a referee to compute. Exhibit I is a portion of Brightwater Towers Condominium's by-laws. Exhibit J are portions of the Declaration showing percentage interest assigned to each parking unit. Exhibit K is the notice of default, dated May 29, 2009. Exhibit L is the judgment of foreclosure and sale.
The Board also submitted a separate supplemental affirmation of Thomas P. Higgins in support of its application for attorneys' fees, and four annexed exhibits labeled A through D. Exhibit A is a copy of Article IX of the by-laws of Brightwater. Exhibit B [*3]is Mr. Higgins' resume. Exhibit C is a printout of the breakdown for the work he did for the Board through February 29, 2012. Exhibit D is a printout of the expenses and disbursements through February 1, 2012.
Lukashevskaya opposed the motion with an affirmation of counsel and an annexed copy of the referee's oath and report of the amount due to the Board.
The Board replied with an affirmation of its counsel. The Board also submitted a supplemental affirmation of Thomas P. Higgins, Esq. with one exhibit labeled A. Exhibit A is the notice of entry, of the order of this Court dated September 25, 2012, which required a party to remedy the ambiguity in the referee's report regarding the reference to testimony.
LAW AND APPLICATION
In an action to foreclose a mortgage, RPAPL 1321 allows the court to assign a referee to compute the amount due to the plaintiff (Bd. of Directors of Hunt Club at Coram Homeowners Ass'n, Inc. v Hebb, 72 AD3d 997, 999 [2nd Dept 2010]). A referee's powers and duties cannot go beyond the scope of the order of reference (see CPLR 4311; First Data Merch. Services Corp. v One Solution Corp., 14 AD3d 534, 535 [2nd Dept 2005]). However, findings of the referee are not final. The Supreme Court has the final decision in the dispute and can confirm or reject the referee's report, and make its own findings (see CPLR 4403; Fed. Deposit Ins. Corp. v 65 Lenox Rd. Owners Corp., 270 AD2d 303, 304 [2nd Dept 2000]).
CPLR 4311 provides that an order of reference shall direct the referee to determine the entire action or specific issues, to report issues, to perform particular acts, or to receive and report evidence only. It may specify or limit the powers of the referee and the time for the filing of his report and may fix a time and place for the hearing.
In this instance, the order of reference directed the referee to ascertain and compute the amount due to the plaintiff and to examine and report whether or not the mortgaged premises should be sold in parcels. The referee separately addressed seven charges listed on the Delinquent and Prepaid Report, dated January 9, 2012. The referee computed the assessment charge due to the Board to be $1,103.88. The referee stated that the Board failed to prove the validity of its charge for late fees, bad check charge, additional common charges, legal fees, air conditioning and parking fees.
The referee stated that the Baord did not establish the validity of these charges with documentation, such as minutes from the Board's meetings showing Board approval of the specific amounts of the charges. The referee did not consider the affidavits of the president of the Board and the property manager, which attested to the amounts propriety, to be sufficient.
Evidence of the Board's authority to collect assessments pursuant to relevant sections of the Declaration and By-laws, an invoice reflecting the charges and the amounts allegedly owed, and an affidavit of a partner in the Association's managing agent attesting to the defendant's failure to pay that amount is sufficient to successfully establish [*4]the amount due (see Bd. of Directors of Squire Green at Pawling Homeowners Ass'n, Inc. v Bell, 89 AD3d 657, 658 [2nd Dept 2011]). Additionally, sworn testimony alone would be sufficient pursuant to RPARL 1321, which allows a referee to consider both, oral and documentary evidence (see RPAPL 1321; Isaacson v Karpe, 84 AD2d 868 [3rd Dept 1981]).
Here, in support of the unpaid common charges, the plaintiff provided the following: (1) relevant sections of the By-laws that authorize the Board to determine the amount of the charges; (2) amounts due under common charge lien; (3) delinquent and prepaid report; (4) Brightwater Towers schedule B to declaration schedule of units; (5) operating budget comparison for the year ending 12/31/11; and (6) an affidavit of plaintiff Cynthia Reich, manager and president of the Board of Managers, and a supplemental affidavit of Irina Besser, the property manager. The sworn testimony of the president of the Board and the property manager indicated that each of the charges listed on the delinquent and prepaid report were accurate and totaled $26,573.84.
It is the defendant's burden to show that plaintiff improperly allocated the charges in light of the by-laws (see Bd. of Managers of 229 Condo. v J.P.S. Realty Co., 308 AD2d 314, 315 [1st Dept 2003]). Here, the defendant did not contest the propriety of the charges.
The referee did not exceed her authority in the matter, as the order of reference permitted Ms. Noe to compute. However, based on the statements in the two affidavits and the detailed business records, the referee should have calculated the amount due based on the documentation provided. Instead of sending the calculations back to the referee and ordering her to accept the amounts of the charges as indicated in the affidavits, the Court will calculate the amount due (see CPLR 4403; Fed. Deposit Ins. Corp. v 65 Lenox Rd. Owners Corp., 270 AD2d 303, 304 [2nd Dept 2000]). After examining the documentation provided, the Court finds that the Board's claim that $26,573.84 is owed as of January 9, 2012 is valid.
Also, the referee did not indicate in her report whether the premises should be sold in parcel, as the order of reference directed her to do. Since the unit is one residential condominium unit, the premises must be sold as one parcel, as the president of the Board asserted in her affidavit. Therefore, the Court orders the property to be sold as one parcel.
The plaintiff also requests attorney's fees. It is a general rule that each side is responsible for bearing its own costs in litigation, and that, absent agreement, statute or court rule, the prevailing party may not collect attorney's fees from the losing one (see, e.g., Hooper Assoc. v AGS Computers, 74 NY2d 487 at 491 [1981]). Article four of the by-laws state that the Condominium is entitled to attorney's fees as the prevailing party. The total fees sought are $44,336.62. In support of the request, Mr. Higgins submits an affirmation, his resume, time sheets reflecting the work performed, and an abstract of disbursements.
[*5]
However, "[a]n award of attorneys' fees pursuant to such a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered. . . An award of reasonable attorneys' fees is within the sound discretion of the court (SO/Bluestar, LLC v Canarsie Hotel Corp., 33 AD3d 986 [2nd Dept 2006] (internal citations omitted)).
While a hearing is not required in all circumstances, the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered. There must be a sufficient affidavit of services, detailing "the hours reasonably expended ... and the prevailing hourly rate for similar legal work in the community ((SO/Bluestar, LLC., 33 AD3d 986 [2nd Dept 2006]).
"A reasonable attorney's fee is commonly understood to be a fee which represents the reasonable value of the services rendered. In general, factors to be considered include (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and 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, 57 AD3d 828 [2nd Dept 2008] (internal citations omitted)).
In the instant matter, Mr. Higgins asserts that 113.50 hours were expended on the instant matter. He billed his hours at $300.00 and $325.00, beginning in 2012, which was a reduced rate of his normal $400.00. Mr. Trippet, another attorney in the firm billed his time at $300.00 per hour and the firm's paralegal billed at $95.00 per hour. Furthermore, Mr. Higgins states that there is un-billed time, including the making of the instant motion which took 22.50 hours of attorney time and 10.75 hours of paralegal time totaling $8,446.25. His affirmation submits that Mr. Higgins has made twelve court appearances, there have been four motions, including one brought by order to show cause and a routine reference for computation of damages which has "resulted in attorney activity that, while necessary and appropriate, is beyond the norm."
Mr. Higgins' affirmation supports a conclusion that he possessed the skills required to effectively initiate and initially litigate this action (see e.g. Diaz, 19 AD3d 357 [2nd Dept 2008]). However, Mr. Higgins' testimony did not establish that he needed to spend 113.50 hours working on the action. For example, Mr. Higgins asserted that he spent 44.50 hours working on the judgment of foreclosure and sale motion. That time included four court appearances, however the motion did not involve any novel or complex issues, but rather the application of general foreclosure principles.
Additionally, while the instant motion may be "beyond the norm" for a condominium foreclosure action, there are no novel or complex issues raised herein. Mr. Higgins offers no explanation as to the 38.25 combined lawyer and paralegal hours allegedly expended on the instant motion. The affirmation of Mr. Higgins fails to establish the reasonableness of the amount of hours expended in the litigation.
[*6]
Furthermore, "as a general rule, the "reasonable hourly rate [for an attorney] should be based on the customary fee charged for similar services by lawyers in the community with like experience and of comparable reputation to those by whom the prevailing party was represented" Matter of Gamache v Steinhaus, 7 AD3d 525 [2nd Dept 2004]. The petitioners' counsel failed to support their claim that $300.00 and $325.00 per hour was a reasonable hourly rate for the type of work performed on the plaintiff's behalf. In fact, the only information presented to support the reasonableness of the hourly fees are Mr. Higgin's own self-serving statements that the rates are "customary and reasonable." The record was devoid of proof as to the "customary fee charged for similar services by lawyers in the community with like experience and of comparable reputation to those by whom the prevailing party was represented"(Id.).
In light of Mr. Higgins' failure to establish that the rates were reasonable and customary and the lack of comparative hourly fees, the court finds that an award of $15,000.00 plus disbursements to be more reasonable than the proposed $44,336.62.
Therefore, the plaintiff is awarded $26,573.84 as of January 9, 2012, plus $15,000.00 in attorney's fees.
The foregoing constitutes the decision and order of this court.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
