Fitore Assoc., LLC v Mallard
Annotate this CaseDecided on April 13, 2018
City Court of Mount Vernon
Fitore Associates, LLC, Petitioner,
against
Alfred Mallard, Respondents.
0084-18
For Petitioner:
Nat Sripanya, Esq.
Gross & Stabile, LLP
9 West Prospect Avenue, Suite 406
Mount Vernon, New York 10550
For Respondent:
Alvin J. Thomas, Esq.
10 Fiske Place, Suite 417
Mount Vernon, New York 10550
Adam Seiden, J.
Plaintiff commenced this holdover summary proceeding on January 15, 2018 based upon respondent's alleged violation of the lease in failing to keep the subject premises in good condition and in compliance with fire codes in that respondent allowed the apartment to become unsanitary and cluttered. The parties last appeared in court on March 8, 2018, wherein petitioner advised the Court that respondent had cured all the defective conditions in the apartment which was confirmed by an inspection on February 27, 2018. As such, petitioner was no longer seeking to recover possession of the subject premises and the matter was settled. The only issue that remained was petitioner's request for attorney's fees and costs. The parties waived a hearing regarding the issue of petitioner's legal fees and agreed to a decision based upon papers. Petitioner's counsel, Nat Sripanya, submitted an affirmation of legal fees. Subsequently, on March 19, 2018, respondent filed its opposition to petitioner's affirmation.
In his affirmation, Mr. Sripanya affirms that petitioner is entitled to legal fees from the respondent based upon paragraph 23.D(3) of the lease for the premises. Notably, a copy of the [*2]lease is not attached to petitioner's affirmation nor does counsel provide the language of paragraph 23.D(3) in his papers. Mr. Sripanya affirms that due to the tenant's failure to abate the unsafe and unsanitary hoarding conditions in his apartment the instant proceeding was commenced. Mr. Sripanya further affirms that respondent's hoarding was only confirmed after an inspection ordered by this Court during a prior holdover proceeding predicated on tenant's failure to allow the petitioner to inspect the subject premises as required by the lease agreement. The prior holdover proceeding was withdrawn after the inspection and a Notice to Cure the hoarding condition, the basis for the instant proceeding, was served on respondent.
Mr. Sripanya states that his firm is generally paid flat fees for summary proceedings and related tasks. Specifically, in the instant proceeding, the flat fees were as follows: preparation and supervision of the service of notice to cure was $150.00; preparation and supervision of the service of notice of termination was $150.00; preparation and supervision of the service of notice of petition and petition was $350.00; and three subsequent court appearances at $150.00 each. He further states that additional fees are charged for trial preparation and appearance for trial at a rate of $250 per hour. Mr. Sripanya further states that he spent an additional .9 hours preparing for the trial that was scheduled to take place on January 30, 2018. Based upon the flat fees plus the additional fees charged for the trial preparation the total amount of attorneys' fees is $1,325.00. In addition, plaintiff's firm expended $64.00 for service of the notice of termination, $57.00 for service of process upon respondent, $45.00 for the court filing fee and $20.40 for high quality color photographs of the court ordered inspection in the instant proceeding for a total of $186.40 in costs and disbursements.
Respondent Alfred Mallard opposes the application for legal fees arguing that he cured the alleged hoarding conditions to the best of his ability after receiving the notice to cure on or about November 2, 2017. He further states that he wrote a note indicating that he had cured the issues to the best of his ability and inquiring whether there would be another inspection. Respondent contends that rather than doing a reinspection petitioner served him with a notice to terminate and then commenced the instant proceeding even though his apartment was available for a reinspection. Respondent further argues that at no time during this proceeding did the Court find that respondent had violated the lease or that he had been living in a hoarding condition.
"A request for legal fees requires presentation of (1) an agreement to pay such fees, tendered by an appropriate affidavit, and (2) an attorney's affirmation detailing the fee arrangement, the legal services provided and the relevant factors bearing upon the claim." Citibank (South Dakota), N.A. v. Macarle, 11 Misc 2d 128A (2d Dept 2006). Here, petitioner's counsel provided an affirmation detailing the legal services rendered for the petitioner. However, the Court is not in possession of a copy of the subject lease agreement with the alleged clause pursuant to which respondent agreed to pay such legal fees.
Moreover, ordinarily, only a prevailing party is entitled to attorney's fees. Nestor v McDowell, 81 NY2d 410 (1993). To be considered a prevailing party, a party must be successful with respect to the central relief sought. Fatsis v 360 Clinton Ave. Tenants Corp., 272 AD2d 571 (2d Dept 2000); DKR Mtge. Asset Trust 1 v Rivera, 14 NYS 3d 414 (2d Dept 2015) (holding that an award of attorneys fees was not proper where there was a voluntary discontinuance of the action and there was no substantive determination in the case on the merits).
In the case at bar, the Court is unable to find that respondent agreed to be liable for [*3]attorneys fees since no copy of the lease agreement was provided to the Court at any time during this proceeding. Petitioner failed to even provide the alleged language in the lease upon which its request for legal fees is based. Moreover, given that after the February 27, 2017 inspection, petitioner was no longer seeking to recover possession of the subject premises and the matter was settled, there was no final determination on the merits and petitioner was not successful with respect to the central relief sought. As such, petitioner cannot be considered a prevailing party and is not entitled to an award of legal fees in this proceeding.
The above constitutes the Decision and Order of the Court.
The Court considered the following papers on this motion: Affirmation of Legal Fees dated March 7, 2018, Exhibits A-B; Affirmation in Opposition dated March 15, 2018, Affidavit in Support, Exhibit A.
Dated: April 13, 2018
Mount Vernon, New York
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
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