Ianniciello v PBDP, Inc.

[*1] Ianniciello v PBDP, Inc. 2015 NY Slip Op 50770(U) Decided on May 7, 2015 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2014-279 RI C

Angiolina Ianniciello, Respondent,

against

PBDP, Inc., Appellant, -and- DENNIS PARASCANDIOLA and PETER BASILIO, Defendants.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered July 30, 2013. The judgment, insofar as appealed from and as limited by the brief, after a nonjury trial, awarded plaintiff the principal sum of $3,250 as against defendant PBDP, Inc.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of the damages to be awarded plaintiff on her cause of action against defendant PBDP, Inc.

Plaintiff landlord commenced this small claims action against PBDP, Inc. (PBDP), a commercial tenant, and Dennis Parascandiola and Peter Basilio, PBDP's principals, to recover the sum of $3,250 as attorney's fees, which, she alleged, were due and owing under the terms of the parties' lease. PBDP and Basilio counterclaimed to recover the sum of $5,000, claiming that plaintiff had breached the lease and failed to make structural repairs. After a nonjury trial, the Civil Court awarded plaintiff judgment in the principal sum of $3,250 as against PBDP, finding that the lease provided for tenant's reimbursement of attorney's fees incurred by plaintiff as a result of PBDP's default in paying rent or additional rent. So much of the action as was against Parascandiola and Basilio was dismissed, as there had been no proof offered to show that they were liable. The counterclaims of PBDP and Basilio were likewise dismissed. As limited by the brief, PBDP appeals from so much of the judgment as awarded plaintiff the principal sum of $3,250 as against it.

The lease provides that if the tenant defaults in the payment of rent or additional rent, or in the performance of any of the covenants or conditions of the lease, and if the landlord institutes an action or summary proceeding against the tenant based upon such default, the tenant will be responsible for reimbursing the landlord for reasonable attorney's fees and disbursements incurred by the landlord. The lease also contains a separate paragraph which states that if payment of rent, additional rent or any other charges due under the lease is made more than 10 days after such payment was due, the tenant will be responsible for reimbursing the landlord for "all reasonable fees including administration and legal fees and interest . . . for collection of same" and that such charges will be due and payable as additional rent. Plaintiff offered into evidence various letters sent by her attorney to PBDP, informing PBDP of the amounts which were overdue and of the legal consequences arising from PBDP's late payment of such amounts. Although PBDP's witness admitted that there had been times when the rent was more than 10 days late, he stated that the payments had ultimately been made, and he contended that PBDP was not responsible for attorney's fees in the instant case because there had been no litigation involved. He further argued that, in any event, the lease provisions are ambiguous.

Contrary to PBDP's contention, we find that the provisions of the lease are not ambiguous but are to be read separately and applied to different circumstances: the former provision provides for attorney's fees in the event that the landlord proceeded to litigation after the tenant had defaulted in the payment of rent or additional rent, or in the performance of any covenants or conditions of the lease; the other provision provides for the tenant's payment of administration and legal fees incurred by the landlord in the collection of any amounts due the landlord as a result of the tenant's failure to make a timely payment, even in the absence of the institution of legal proceedings to collect such overdue amounts. Clearly, here, plaintiff relied upon the latter provision, in that it had proceeded through counsel in order to collect amounts due and owing as a result of PBDP's failure to comply with various payment provisions of the lease. Consequently, under the latter provision, landlord was entitled to recover for the administration and legal expenses reasonably incurred due to defaults (see Livigne v D'Agostino Supermarkets, 207 AD2d 776 [1994]).

In view of the foregoing, and as such determination was consistent with substantive law principles (see CCA 1804, 1807), we leave undisturbed the Civil Court's finding that PBDP was liable for plaintiff's reasonable administration and legal fees in the collection of overdue amounts. The Civil Court's award of damages, however, is not sustainable upon the record presented.

"An award of attorneys' fees pursuant to . . . a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered" (Kamco Supply Corp. v Annex Contr. Inc., 261 AD2d 363, 365 [1999]). The evaluation of what constitutes reasonable counsel fees is a matter that is generally left to the sound discretion of the trial court (see Downes v Aran, 273 AD2d 435 [2000]; Ebrahimian v Long Is. R.R., 269 AD2d 488, 489 [2000]). "In determining what is reasonable compensation for an attorney, the court may consider a number of factors including the time spent, the difficulties involved in the matters in which the services were rendered, the nature of the services, the amount involved, the professional standing of the counsel, and the results obtained' " (Granada Condominium I v Morris, 225 AD2d 520, 522 [1996], quoting Matter of Potts, 213 App Div 59, 62 [1925], affd 241 NY 593 [1925]). While a court "may consider its own knowledge and experience concerning reasonable and proper fees and in the light of such knowledge and experience, the court may form an independent judgment from the facts and evidence before it as to the nature and extent of the services rendered, make an appraisal of such services, and determine the reasonable value thereof" (Jordan v Freeman, 40 AD2d 656, 657 [1972]), here, there was no documentary evidence or any testimony offered to demonstrate that the rate charged by plaintiff's attorney for the services rendered to plaintiff was reasonable (cf. Mandel v Vider, 2003 NY Slip Op 51331[U] [App Term, 2d & 11th Jud Dists 2003]). Consequently, upon the record presented, we find that the judgment failed to render substantial justice between the parties according to the rules and principles of substantive law (see CCA 1804, 1807).

Accordingly, the judgment, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a new trial limited to the issue of the damages to be awarded plaintiff on her cause of action against defendant PBDP, Inc.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: May 07, 2015