76th St. Owners' Corp. v Elshiekh
Annotate this CaseDecided on November 16, 2010
Civil Court of the City of New York, Bronx County
76th Street Owners' Corp., Petitioner-Landlord
against
Fouad Elshiekh and Deborah Elshiekh, Respondents-Tenants "JOHN DOE" and "JANE DOE" Occupant(s)
L & T 3778/10
GALLET DREYER & BERKEY LLP
Attorneys for Petitioner
By: BEATRICE LESSER, ESQ.
845 Third Avenue, 8th Floor
New York, New York 10022
(212) 935-3131
FOUAD ELSHIEKH
DEBORAH ELSHIEKH
Respondents - Pro Se
Sabrina B. Kraus, J.
This summary holdover proceeding was commenced by 76TH STREET OWNERS' CORP (Petitioner) seeking to recover possession of Apartment 227 at 35-36 76TH STREET JACKSON HEIGHTS, NEW YORK 11372 (Subject Premises), based on the allegation that FOUAD ELSHIEKH and DEBORAH ELSHIEKH (Respondents) are the proprietary lessees of the Subject Premises, and that their tenancy has been terminated by a vote of the Board of Directors, in accordance with the proprietary lease.Pursuant to a decision and order dated June 16, 2010, the Court granted Petitioner summary judgment. Petitioner was awarded a judgment of possession, and a hearing was scheduled for July 15, 2010, to determine the amount of attorneys' fees and use and occupancy due in this proceeding.
Respondent subsequently moved for re-argument, and on September 27, 2010, [*2]respondent's motion was denied and the hearing on attorneys' fees and use and occupancy was rescheduled for October 20, 2010 at 2pm. The hearing commenced on October 20, 2010 and concluded on October 22, 2010. At the conclusion of the hearing, the Court reserved decision. The scope of the hearing was limited to the amount of fees and use and occupancy to be awarded. Entitlement to attorneys fees and use and occupancy was determined by the Court's June 16, 2010 decision referenced above.
USE & OCCUPANCY
Petitioner's first witness at the hearing was Gavita Kisson, a managing agent. Petitioner offered into evidence as Exhibit 1, a history of charges and payments for Respondents from 2001 through October 2010. Petitioner asserts $8750.66 due in use and occupancy, excluding attorneys fees through October 2010. There was a previous non-payment proceeding between the parties, which was resolved on or about June 2006. The basic monthly carrying charges for the Subject Premises have been $761.82 from October 2008 forward. The first predicate notice issued is dated June 2009. This Court limits Petitioner to recovery on use and occupancy claims from June 2009 forward. Any claims for use and occupancy which are prior to June 2009 are severed without prejudice (Scherer, Residential Landlord-Tenant Law, 2009-2010 Ed, § 8:40 use and occupancy appropriately granted for time period after termination of landlord-tenant relationship).
Petitioner's claim for use and occupancy is based on the obligations for payment under the expired proprietary lease, which rate and basis for determination, the Court finds to be reasonable (Earl v. Nalley 273 AD 451).
Pursuant to the testimony of the witnesses and the documentary evidence, the Court finds that from June 2009 forward, Respondent was assessed $12,950.94 in carrying charges and assessments. Against said amount, Respondent was credited $1144.54 for tax abatements and star exemptions for that same period, leaving a balance of charges for the period of $11,806.40. The same evidence shows payments during this period of $6249.08. Therefore there is a balance due of use and occupancy for the period of June 2009 through October 2010 of $5557.32.
While Respondent had raised in a general way the issues pertaining to the warranty of habitability during the course of this proceeding, Respondent offered no specific evidence at the hearing that would support the award of an abatement against the use and occupancy due based on warranty claims. Additionally, Respondent offered no evidence that his maintenance was not appropriately increased from $711.98 to $761.82, nor any explanation as to why he failed to recognize or pay said increase. Based on the foregoing, the Court finds that Respondent is entitled to an award of use and occupancy for the period of June 2009 through October 2010 of $5557.32.
ATTORNEYS FEES
At the commencement of the hearing, Petitioner alleged that there was $60,240.25 due in attorneys' fees for this proceeding, plus disbursements of $1557.05. Additionally, Petitioner seeks fees for the time spent on the hearing. The court is guided by the lodestar method in determining the fees to be awarded to Petitioner, which requires that the number of hours reasonable expended on the litigation be multiplied by a reasonable hourly rate [Hensley v. [*3]Eckerhart 461 US 424 (1983)].
The sole witness for Petitioner on the issue of attorneys fees was Beatrice Lesser. Ms. Lesser put into evidence a copy of the letter agreement of retainer with her client (Exhibit 2), a copy of her resume (Exhibit 4) and two documents labeled Detail Transaction File List (Exhibits 3A & 3B) which itemize attorneys fees and costs related to this proceeding.
Ms. Lesser testified that her hourly billing rate was $375 per hour, until January of 2010 when the rate rose to $380 per hour. Ms. Lesser testified that she has been admitted to the Bar since 1981, and specializes in litigating these types of issues for Coop Boards. In determining the reasonable hourly rate to be awarded for attorneys, the Court has considered "... the nature of the services rendered, the complexity and novelty of the issues, the attorney's professional reputation and experience, the level of skill involved in handling the case, the result obtained, and the going rate in the community for service of this kind performed by attorneys of comparable skills (Solow v. Wellner 150 Misc 2d 642, at 652 )."
Based on the un-controverted testimony provided by Ms. Lesser and the evidence offered at the hearing, the Court finds that the hourly fee sought by Ms. Lesser is reasonable.
Additionally, the written retainer agreement wherein Petitioner agreed to pay an hourly fee of $325.00 to $425.00 per hour, for time spent by Partners working on the case, further supports a finding that the hourly rate is reasonable.
However, no other attorneys testified at the hearing, nor did Ms. Lesser testify in any detail about the identity and experience of other attorneys who billed for work. Exhbit 3B only identifies those attorneys by number. Ms. Lesser is identified as Attorney 3, and billing for attorneys identified as 11, 21, and 27 also appear on the Exhbit. As insufficient evidence was provided by Petitioner, as to the identity of these attorneys, and the nature and extent of their experience, the Court does not award Petitioner fees for the charges asserted by said attorneys (Jordan v. Freeman 40 AD2d 656 holding party seeking fees must prove entitlement by demonstrating inter alia professional standing of counsel; Blum v. Stenson 465 US 886 holding its petitioner's burden to provide court with evidence establishing the experience and skills of the attorney for which hourly rate and fees are sought). Based on the foregoing, the Court deducts $3360.25 from the fees sought.
The Court has discretion to modify a fee application and may adjust the basic lodestar method in consideration of facts specific to the litigation (Podhorecki v. Luer's Furniture Stores, Inc. 201 AD2d 947). Although, the first notice relied upon as a predicate for the underlying proceeding is dated June 2009, Exhbit 3B shows that billing commenced on this matter in March 2008. The billing between March 2008 and June 2009 is in large part focused on the question of Housing Maintenance Code Violations that were issued for the Subject Premises, and relate to a prior HP proceeding between the parties. Additionally, much of the pre -June 2009 billing was for an initial notice, drafted in or around May 2008, which was subsequently revised. Petitioner seeks $8850.00 in fees for through June 2, 2009, and the final preparation of the June 2009 Notice. The Court finds such charge excessive, in relation to the amount accomplished in the litigation as of said date. Given that this period predates the Notice of Petition and Petition in this proceeding, the Court finds that the majority of the billing prior to June 2009 cannot be said to be directly attributable to Petitioners's prevailing party status in this litigation, or even the successful institution and prosecution of the underlying holdover proceeding. Based on the foregoing, the Court finds that Petitioner should be limited in recovery of fees for said period to $2500, and disallows the remaining $6350.00 sought in fees for this period. [*4]
Additionally, in the billing for the period of September 21, 2009 through October 19, 2009, Petitioner appears to have contemplated instituting an action in Supreme Court and charges for said period relate to the preparation of the pleadings for said Supreme Court Action.As the charges during said period do not relate to the successful prosecution of this proceeding, they are disallowed by the Court. The charges for said period total $1106.25.
Furthermore, the Court disallows the following charges sought by Petitioner, for work that is secretarial in nature and not appropriately billed at the hourly rate reasonable for attorneys (Rahmey v. Blum 95 Ad2d 294 holding fees properly reduced for clerical work which can be accomplished by non lawyers at a lesser rate): 7/31/09 for mailing of notices; 8/25/09 for scheduling stenographer; 11/30/09 for emailing a document; and 8/20/2010 totaling $406.25.
The following charges, incurred in addressing matters outside the scope of this proceeding are also disallowed: 10/30/09 for $37.50; 11/10/09 for $18.75; half of the charge on 1/11/2010 for work related to the HP Proceeding ($608); 1/18/2010 for $190.00; 1/19/2010 for $95.00; 2/23/2010 and 2/26/2010 totaling $209.00; charges for 3/12/2010 through 3/16/2010 totaling $475.00; 3/29/2010 for $114.00; 6/21/2010 for $76.00; 6/24/2010 for $76.00; 6/29/2010 for $1140.00; 6/30/2010 for $570.00; charges for 7/15/2010 (on page 17 of Exhbit 3A) through 7/19/201 totaling $1368.00; and charges on 9/7/2010 and 9/8/2010 totaling $48.75. The total disallowed on this basis is $5026.00.
Finally, the Court is reducing the amounts of some charges, based on excessive time spent on the task described. These reductions are itemized as follows: 2/10/2010 and 2/11/2010 reduced from ten hours to five hours ($1900.00 disallowed); 2/17/2010 reduced from 3 hours to 1.5 hours ($570.00 disallowed); 3/31/2010 and 4/2/2010 reduced from 6.75 hours to 4 hours ($1045.00 disallowed); and 7/21/2010 through 7/26/2010 reduced from 9.25 hours to 6 hours ($1235.00 disallowed). The total amount disallowed by the Court based on reduction of time on tasks described is $4750.00.
An additional four and one half hours is awarded to Petitioner for the preparation and conduct of the attorneys' fees hearing beyond the hours sought in Exhbit 3B for a total of $1710.00.
The Court notes that even with the reductions, the fee awarded is substantial, given that this was a summary proceeding, resolved by a motion for accelerated judgment. However, Respondent, Fouad Elshiekh, was in large part responsible for the fees that Petitioner was forced to incur. Respondent, admittedly pro se, made numerous repeated written motions to the Court for identical relief, lacking substantive merit and in violation of applicable procedures governing the litigation. Because of the nature, manner and number of applications for relief made by Respondent, it was at times difficult to discern the relief that Respondent was seeking or the alleged basis for that relief, and the time spent on the responses to said applications was substantial. Respondent made a wide variety of claims in the context of the litigation, including but not limited to: that he was being discriminated against as an Arab American; that the Coop Board acted without authority and was improperly constituted; and that Counsel for Petitioner lacked authority to represent her client. These claims were often not relevant to the issues before the Court or were never substantiated. Respondent consistently refused to accept service of papers or returned papers served unopened (because he did not recognize the authority of Petitioner's law firm to represent Petitioner), and then came to court seeking time to respond to the papers, stating that he had never received them. These actions substantially increased the fees incurred by Petitioner, and support the award found reasonable by the Court. [*5]
Petitioner seeks $63,507.30 in attorneys' fees, and disbursements, inclusive of the $1710 awarded by the Court for the fees incurred in this hearing. The Court deducts from this sum $20,998.75, as specified above, and awards Petitioner $42,508.55 for fees incurred in this proceeding.
Additionally, Petitioner is entitled to interest on the attorneys' fees incurred at a rate of 9% pursuant to CPLR 5001(a). Petitioner's entitlement to interest on the attorneys' fees vested June 16, 2010, the date that Petitioner prevailed on the underlying holdover proceeding. Pursuant to CPLR 5001(b), the court may select a single reasonable or intermediate date from which to compute interest. In the period from the June 16, 2010 decision to this decision on the attorneys' fees hearing, the Court finds September 1, 2010 to be a reasonable intermediate date and adds $807.08 (42,508.55 x.09 x 77 divided by 365) in interest to the total fees awarded to Petitioner. Petitioner is entitled to an award of fees totaling $43,315.63.
CONCLUSION
Based on the foregoing the Court finds Petitioner is entitled to a money judgment against Respondents for attorneys' fees and use and occupancy in the amount of $48,872.95.
This constitutes the decision and order of this Court.
___________________________
SABRINA B. KRAUS
Dated: New York, New York
November 16, 2010
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