29-33 Convent Ave. Hous. Dev. Fund Corp. v Bost
Annotate this CaseDecided on January 6, 2016
Civil Court of the City of New York, New York County
29-33 Convent Avenue Housing Development Fund Corporation, Petitioner-Landlord
against
Simona Bost 29 Convent Avenue, Apt. 1 New York, New York 10025, Respondent-Tenant.
L & T 59390/14
ANDREA SHAPIRO, ESQ.
Attorney for Petitioner
62 William Street, 8th Floor
New York, NY 10005
(212) 965-8300
SAMUEL L. WOLF, ESQ.
Attorneys for Respondent
72 Willoughby Street, Suite 3E
Brooklyn, NY 11201
(516) 456-4846
Sabrina B. Kraus, J.
BACKGROUND
This summary holdover proceeding was commenced by 29-33 CONVENT AVENUE HOUSING DEVELOPMENT FUND CORPORATION(Petitioner) seeking to recover possession of Apartment No.1 at 29 Convent Avenue, New York, NY 10025 (Subject Premises), based on the allegations that SIMONA BOST(Respondent), the proprietary lessee of the Subject Premises made alterations to the Subject Premises in violation of the lease agreement and house rules.PROCEDURAL HISTORY
The procedural history through the completion of trial is recited in this Court's August 11, 2015 decision after trial.
On July 15, 2015 the proceeding was transferred to Part R for trial. The trial commenced and then concluded on July 17, 2015.
On August 11, 2015, this court issued a decision awarding Petitioner a final judgment of [*2]possession against Respondent, and staying the issuance of the warrant ten days for Respondent to "effect a cure by restoring the Subject Premises to the condition it was in on February 12, 2013, prior to the removal of any sheetrock or alterations." Respondent was directed to provide access to Petitioner on August 26, 2015, to confirm the cure.
Two post trial motions pertaining to the case were resolved on September 11, 2015 by stipulation, which provided in pertinent part: that Respondent would perform the work for the cure in accordance with all the applicable laws, rules and regulations by September 29, 2015; that the work could commence (and take place only during the authorized hours) upon execution of the stipulation, with no additional work to be performed without prior written approval of Petitioner; that Respondent was to fully defend and indemnify Petitioner against all claims arising from the enumerated work and obtain insurance coverage; that Respondent would utilize only licensed insured contractors; that Petitioner would be permitted to inspect the work in progress; that Respondent would properly notify Petitioner regarding electric service testing and sheetrocking; and lastly that Petitioner would perform a final inspection at 6pm on September 29, 2015 to confirm that the work was completed.
The stipulation provided Petitioner could seek the issuance of a warrant of eviction on default and preserved Petitioner's right to seek attorneys' fees.
INSTANT MOTION
On October 12, 2015, Petitioner moved for issuance of the warrant of eviction based on Respondent's default and for attorneys' fees. Petitioner asserted that Respondent failed to cure by September 29, 2015. Respondent submitted opposition asserting that she substantially cured and requested the denial of Petitioners motion for attorneys' fees as it would be an "undue financial burden" on Respondent as she did not cause irreparable harm to Petitioner as she restored the Subject Premises pursuant to the terms of decision and stipulation.
DISCUSSION
Respondent failed to cure within the time frame
agreed to in the parties stipulationIt is undisputed that Respondent failed to cure and restore the Subject Premises by September 29, 2015. As of said date Respondent had still failed to: address the floors beneath the altered walls, which remained open and unfinished, exposing the sub flooring and creating a gap parallel to the walls; to reinstall the door to the bedroom; and to restore a closet in the bedroom.
Richard Tobin, a member of the Board of Directors of 29-33 Convent Ave. HDFC, inspected the Subject Premises both prior to any the illegal alterations on February 13, 2013 and on September 29, 2015 and that the aforementioned conditions remained outstanding on September 29, 2015.
Respondent does not contest these facts. By her own admission, Respondent acknowledges that to the extent these conditions were addressed, they were not completed until the week of November 2, 2015 — more than thirty days after the stipulated repair date. While the the interior bedroom closet is decorative and non structural in nature, the remaining conditions — the exposed floors and bedroom door — were intrinsic to the restoration of the unit to its original state. Respondent does not provide any reason for why the cure took so long to complete or went so far beyond the agreed upon completion date. Additionally, Respondent did not seek a further [*3]extension of time or make any attempt to contact Petitioner regarding the unfinished work. Additionally, Respondent admits that to some extent restoration to the original condition was never completed and is not possible.
After trial, The Court afforded Respondent the benefit of a post judgment period to cure in accordance with RPAPL §753(4) . Petitioner further extended this period pursuant to the post trial stipulation. . Despite all of the opportunity afforded to her, Respondent admits she did not complete the cure within the prescribed time frame.
Civil Court is not authorized or empowered to enlarge the ten-day statutory post judgment cure period in holdover proceedings where Respondent has breached a provision of the lease (Wilen v. Harridge House, 94 AD2d 123; Belmont Owners Corp v. Murphy, 153 Misc 2d 444).
Moreover, Petitioner is entitled to enforce the specific terms of the post trial stipulation entered by the parties on September 11, 2015. Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from consequences of a stipulation made during litigation (Hallock v State of New York 64 NYD 224).
Based on the foregoing that portion of Petitioner's motion seeking forthwith issuance of the warrant of eviction is granted.
Petitioner Is the Prevailing Party Herein and Entitled to Attorneys'
Fees under the Terms of the Governing Proprietary Lease
Petitioner obtained a final judgment of possession after trial and is the prevailing party in this litigation (Nestor v. McDowell, 81 NY2d 410; Soho Village Realty, Inc., v. Gaffney, 188 Misc 2d 261). The proprietary lease governing Respondent's tenancy provides for attorneys' fees in Article 6.01(c).
The proponent of an application for attorney's fees has the burden of proving the reasonable value of the services rendered (Sand v. Lammers, 150 AD2d 355). Petitioner has met its burden in the mocing papers. Courts typically use the "Lodestar" method to determine reasonable attorneys' fees, which calculates the total by multiplying the number of hours spent by a reasonable hourly rate (Hensley v. Eckerhart, 461 US 424).
The court can consider relevant factors in determining the reasonable fees to be awarded including the nature and extent of the services, the actual time spent, the necessity thereof, the nature of the issues involved, the professional standing of counsel, and the results achieved. The court can even make appraisals and employ its own knowledge and experience to make assessments regarding reasonable and proper fees given the extent of services rendered and reasonable value thereof (Jordan v. Freeman, 40 AD2d 656).
Respondent does not dispute any of Petitioner's charges or expenses. Legal fees can be awarded without an evidentiary hearing where the amount of the fees is not challenged (Old Paris Inc., v. G.E.B.M. International, Inc., 170 AD2d 392).
The Court finds Ms. Andrea Shapiro's rates to be reasonable due to her experience and expertise in the field (Aff. Of Andrea Shapiro). A review of Petitioner's billing records (Ex F) for legal fees and costs incurred sought in this matter totals $32,327.96. This amount is based on numerous hours of research, review of voluminous documents, client meetings and conferences, drafting and service of legal papers, motions and stipulations, court appearances, extensive settlement negotiations and trial preparation, all which the court finds reasonable.
Based on the foregoing, Petitioner is awarded a money judgment in the amount of $32,327.96 for legal fees.
CONCLUSIONPetitioner's motion is granted to the extent of providing for forthwith issuance of the warrant of eviction as well as entry of a money judgment in the amount of $32,327.96 for attorneys fees incurred in this proceeding.
This constitutes the decision and order of this Court.
_______________________
SABRINA B. KRAUS, JHC
Dated: New York, New York
January 6, 2016
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