Hawthorne Gardens Owners Corp v Jacobs

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[*1] Hawthorne Gardens Owners Corp v Jacobs 2015 NY Slip Op 50822(U) Decided on May 6, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2012-186 N C

Hawthorne Gardens Owners Corp., Respondent,

against

David B. Jacobs, Appellant.

Consolidated appeals from orders of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated, respectively, June 20, 2011 and December 23, 2011. The order dated June 20, 2011 denied tenant's motion to, among other things, in effect, vacate a default final judgment and warrant, and to restore the matter to the trial calendar in a nonpayment summary proceeding. The order dated December 23, 2011, insofar as appealed from, upon renewal, adhered to the prior determination.

ORDERED that the appeal from the order dated June 20, 2011 is dismissed, as that order was superseded by the order dated December 23, 2011, made upon renewal; and it is further,

ORDERED that the order dated December 23, 2011, insofar as appealed from, is reversed, without costs, and, upon renewal, the branch of tenant's motion seeking, in effect, to vacate the default final judgment and warrant is granted, and the matter is remitted to the District Court for the entry of a new final judgment awarding landlord possession, additional rent for storage fees of $7,172.78, and attorney's fees, the amount of which shall be determined following a hearing, in accordance with the decision herein.

Landlord, a residential cooperative corporation, commenced this nonpayment summary proceeding to recover possession of tenant's apartment following tenant's alleged violation of the proprietary lease, namely, his failure to pay, as additional rent, costs incurred by the corporation to remove his property from a basement storage area to permit the completion of an asbestos remediation project. Tenant failed to appear on a continued trial date, and a default final judgment was entered, following the submission of an affirmation setting forth landlord's claimed attorney's fees and disbursements, awarding landlord possession, additional rent for storage fees of $7,172.78, and $85,383.85 for attorney's fees and disbursements. Tenant moved, in effect, to vacate the default final judgment and warrant on the ground that he had been medically incapacitated in Florida on the date in question. By order dated June 20, 2011, the District Court denied the motion, citing tenant's failure to produce sufficient medical documentation, relative to the time of the default, to corroborate his claim. Three months later, tenant moved for leave to renew the motion, offering letters written by two physicians in the interim, attesting to his illness and his inability to travel to court on the trial date. By order dated December 23, 2011, the District Court granted renewal and, upon renewal, adhered to its prior determination on the grounds that the new documentation was insufficient to establish a reasonable excuse for the default, and that, in any event, tenant had failed to establish a meritorious defense.

A court is authorized to enter a judgment on default upon a defendant's unexplained failure to appear for trial at the call of the calendar (Vera v Soohoo, 99 AD3d 990, 992 [2012]; see 22 NYCRR 212.14 [b] [1]), and, to be relieved of that default, the defaulting party must demonstrate both a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Capital One Bank (USA), N.A. v Glauber, 39 Misc 3d 142[A], 2013 NY Slip Op 50768[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2013]). As a general rule, "the decision whether to vacate a default judgment rests within the sound discretion of the trial court" (Bardes v Pintado, 115 AD3d 894, 895 [2014]). Where the excuse for the nonappearance is based on medical grounds, the movant must demonstrate a genuine incapacity to attend the court appearance, normally by corroborative medical documentation (Siskin v 221 Sullivan St. Realty Corp., 180 AD2d 544 [1992]; see e.g. Aaron v Greenberg & Reicher, LLP, 68 AD3d 533, 534 [2009]; Ronsco Constr. Co. v 30 E. 85th St. Co., 219 AD2d 281, 284 [1996]; Cruz v Diamond, 6 Misc 3d 134[A], 2005 NY Slip Op 50187[U] [App Term, 9th & 10th Jud Dists 2005]).

Here, the documentation offered in support of the original motion pertained almost entirely to medical examinations and procedures that had occurred subsequent to the default, and the sparse documentation by doctors who had examined tenant prior to the time of the default established only that tenant had experienced gastrointestinal distress, without any reference to tenant's capacity to travel. The new documentation offered in support of the renewal motion was insufficient to establish that tenant was "incapacitated" to the extent required to constitute a medical excuse (see e.g. Tuthill Finance, L.P. v Ujueta, 102 AD3d 765, 766 [2013]; Brown v Brown, 148 AD2d 377, 381 [1989]). Consequently, we agree with the District Court that tenant failed to establish an excusable default.

Moreover, even were the excuse deemed valid, tenant has not shown that he has a meritorious defense to the proceeding. This proceeding was initiated based on tenant's breach of covenants requiring his cooperation with the cooperative's purposes, to abide by the rule-making authority of the Board, to allow lessor to "enter . . . any storage space assigned to Lessee. . ." (lease, paragraph 25) and to reimburse landlord for the expenses incurred in curing tenant's default. Landlord established at the trial that its board of directors had acted properly, as a matter of business judgment, in requiring tenants to empty their basement storage areas to permit asbestos removal (see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537-538 [1990]; Fletcher v Dakota, Inc., 99 AD3d 43, 48 [2012]), and there is abundant proof in the record to support an inference that this decision was made in good faith, pursuant to a lawful and legitimate corporate purpose, and was implemented in an appropriate manner.

However, "[b]efore ordering one party to pay attorneys' fees, the court always has the authority and responsibility to determine that the claim for fees is reasonable . . . . As a general matter, case law establishes that where a landlord has a right to recover attorneys' fees pursuant to a lease provision, the recoverable fees are those that are reasonable" (Solow Mgt. Corp. v Tanger, 19 AD3d 225, 226 [2005]). "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]). Moreover, the rule is that "an attorney's fee must be sought in the action in which it is incurred" (Lupoli v Venus Labs., 287 AD2d 488, 489 [2001]; see Triangle Props. #14, LLC v Beauty Salon Depot/Beauty U.S.A., 29 Misc 3d 132[A], 2010 NY Slip Op 51901[U] [App Term, 9th & 10th Jud Dists 2010]). Given the fact that the award improperly included attorney's fees incurred by landlord in a separate action, and the extremely large discrepancy between the amount sought for storage fees and the amount sought for attorney's fees, the amount awarded as attorney's fees was not reasonable. Consequently, in the particular circumstances herein, in the exercise of the court's inherent discretionary power (see Woodson v Mendon Leasing Corp., 100 NY2d 62 [2003]), we vacate the default final judgment and warrant for the limited purpose of having the District Court make a new determination, following a hearing, of the amount of attorney's fees to be awarded landlord (see Republic Natl. Bank of NY v Simmcor U.S.A. Corp., 203 AD2d 107, 112 [1994]).

We have reviewed tenant's other contentions and find them to be without merit.

Accordingly, the order dated December 23, 2011, insofar as appealed from, is reversed and, upon renewal, the branch of tenant's motion seeking, in effect, to vacate the default final [*3]judgment and warrant is granted, and the matter is remitted to the District Court for the entry of a new final judgment awarding landlord possession, additional rent for storage fees of $7,172.78, and attorney's fees, the amount of which shall be determined following a hearing.

Iannacci, J.P., and Marano, J., concur.

Garguilo, J., taking no part.


Decision Date: May 06, 2015