Trian Realty LLC v Ayorinde

[*1] Trian Realty LLC v Ayorinde 2007 NY Slip Op 52135(U) [17 Misc 3d 1124(A)] Decided on November 1, 2007 Civil Court Of The City Of New York, Kings County Ash, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 19, 2007; it will not be published in the printed Official Reports.

Decided on November 1, 2007
Civil Court of the City of New York, Kings County

Trian Realty LLC, Petitioner,

against

Akin Ayorinde, et al., Respondents,



94957/06

Sylvia G. Ash, J.

In this summary holdover proceeding, Petitioner moves for attorney fees.

On October 16, 2006, the parties entered into a stipulation for a "Vacate Date" of

April 30, 2007. On April 25, 2007, the parties entered into an Amended Stipulation which extended the vacate date to April 30, 2010. On September 4, 2007, Petitioner served upon Respondent a Notice of Default for failure to pay rent for August and September, 2007 which set a cure date by September 9, 2007. On September 5, 2007, Petitioner accepted a check subject to collection for the rental arrears. On September 6, 2007, Respondent was served a Notice of Eviction by the Marshall. On September 10, 2007, Respondent filed an Order to Show Cause to enjoin the Petitioner from evicting the Respondent with a return date of September 25, 2007. On September 20, 2007, Petitioner s Counsel faxed to Respondent's Counsel a Stipulation withdrawing the Show Cause and Notice of Eviction.

On September 25, 2007, the attorneys for the parties appeared in Court, however Respondent did not personally appear in Court, as a result, the matter was adjourned to October 9, 2007, for the parties to execute the Stipulation of Settlement. On October 9, 2007, the parties failed to execute the agreement due to the instant dispute involving attorney's fees.

Petitioner contends that he is entitled to attorney's fees because this matter could

have been resolved without the October 9th Court date if Respondent had simply signed the Stipulation of Settlement Agreement.

Pursuant to 22 NYCRR 130-1.2 (Rule 130-1.2) the Court may impose as a sanction,

attorney's fees when a party engages in frivolous conduct. Whether conduct is frivolous depends on the unique circumstances of each case. Courts have found conduct which cause one side to incur unnecessary expense (Wasson v. Mendik, 253 AD2d 711), harass the opposing party (Board of Education of Liverpool Cent. School District v. Allen, 192 AD2d 1099, leave to appeal dismissed 82 NY2d 846), vex and hinder attempts to move the case forward (Lynn v. Barnes & Nobles Inc., 189 AD2d 560), or cause baseless litigation (Schermerhorn v. Quinette, 28 AD2d 822) to be sanctionably frivolous.

Although the Court agrees with the Petitioner that this matter should have been

resolved without the October 9th Court appearance, the Court does not find Respondent's conduct to be frivolous as defined by Rule 130-1.2. There was no evidence that Respondent's conduct was designed to prolong or delay matters (Stow v. Stow, 262 AD2d 550), or harass or vex Petitioner (Lynn v. Barnes & Nobles, supra.). Respondent's Show Cause Order was designed to notify the Marshall that this matter was resolved and therefore appropriate. The parties could have worked out the matter at this point, since Petitioner concerns pertaining to the check and Respondent's concern that the Marshall might erroneously evict him were resolved. However, it is not unusual for attorneys to prefer resolving legal matters in Court. As a professional courtesy, Counsel for Respondent could have communicated to Petitioner's Counsel that the Respondent was out of town and unavailable to appear in Court on the September 25th Show Cause date. While, an attorney who exhibits a lack of common courtesy tarnishes the image of the legal profession (Principe v. Assay Partners, 154 Misc 2d 702), the conduct must rise to the level required of Rule 130-1.2 to be sanctionable.

However, Petitioner is not claiming any wrongdoing on the Respondent's part concerning the September 25th Court date . Petitioner argues that Respondent should have executed the Stipulation between the adjourned date because the matter was essentially resolved. Respondent's counsel contends that his client was still out of town on the adjourned date and therefore unable to sign the Stipulation.

Again, the Court agrees that the October 9th Court appearance could have been avoided. The fact that the lawyers could not work out an agreement (perhaps a stipulation of adjournment) without coming to Court does not constitute frivolous conduct. Accordingly Petitioner's motion for attorney's fees is denied.

This constitutes the Decision and Order of the Court.

DATED: November 1, 2007

_______________________________

Sylvia G. Ash, J.C.C.