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L & S Realty of Massapequa v. Elliot Schwartz

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


February 25, 2011

L & S REALTY OF MASSAPEQUA,
PETITIONER-LANDLORD-CROSS- APPELLANT,
v.
ELLIOT SCHWARTZ, RESPONDENT-TENANT-RESPONDENT, AND JOHN DOE AND JANE DOE,
RESPONDENTS-UNDERTENANTS.

Per curiam.

L & S Realty of Massapequa v Schwartz

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 25, 2011

PRESENT: Schoenfeld, J.P., Shulman, Torres, JJ

Nonparty Lee M. Nigen, Esq., as limited by his brief, appeals from those portions of an order of the Civil Court of the City of New York, New York County (Marcia J. Sikowitz, J.), dated April 8, 2010, after a hearing, which, pursuant to 22 NYCRR 130-1.1, imposed sanctions against Nigen in the amount of $3,000 and awarded costs to tenant in the principal amount of $130,514.22, to be paid by Nigen and petitioner-landlord, in a holdover summary proceeding. Landlord, as limited by its brief, cross-appeals from that portion of the aforesaid order which, pursuant to 22 NYCRR 130-1.1, awarded costs to tenant in the principal amount of $130,514.22 to be paid by landlord and Nigen.

Order (Marcia J. Sikowitz, J.), dated April 8, 2010, insofar as appealed from, modified to reduce the award of costs imposed upon landlord and Nigen from the principal sum of $130,514.22 to the principal sum of $13,000; as modified, order affirmed, without costs.

Civil Court providently exercised its discretion in determining that the conduct of landlord and its attorney, Mr. Nigen, was frivolous within the meaning of 22 NYCRR 130-1.1(c) (see Grozea v Lagoutova, 67 AD3d 611 [2009]; Pickens v Castro, 55 AD3d 443 [2008]). The record amply supports the finding that landlord and Nigen instituted and continued to prosecute this baseless holdover proceeding -- alleging that tenant should be evicted because his oral lease agreement for the purportedly unregulated unit had expired. Notably, landlord and Nigen were aware that (1) the premises were part of an "interim multiple dwelling" covered under the Loft Law (Multiple Dwelling Law § 281), (2) tenant entered into possession pursuant to a now-expired written lease, and (3) tenant was entitled to continued occupancy (see Multiple Dwelling Law § 286[2]). Therefore, we do not disturb the court's fact-laden, credibility-based finding that the conduct of landlord and Nigen was completely without merit in law (22 NYCRR 130-1.1[c][1]), that landlord intended to harass or maliciously injure tenant (22 NYCRR 130-1.1[c][2]), and that the petition prepared by Nigen contained material factual statements that were false (22 NYCRR 130-1.1[c][3]). Moreover, Civil Court providently exercised its discretion in imposing a $3,000 sanction upon Nigen for his frivolous conduct in this proceeding.

We find, however, that the award of costs to tenant in the amount of $130,514.22 was excessive and an abuse of discretion. In this regard, Civil Court erred in reimbursing tenant for costs incurred in a subsequent (2008) holdover summary proceeding dismissed by Judge Lebovits. That subsequent proceeding was not "before the court" (22 NYCRR 130-1.1[a]), since the counterclaim asserted in tenant's answer to the 2008 proceeding seeking sanctions was never consolidated with this proceeding. Moreover, since Civil Court informed landlord and Nigen during the underlying hearing that costs incurred in the 2008 proceeding would not be considered in this case, the court erred in reversing course without prior notice to the parties. Our disposition is without prejudice to any future application for costs and sanctions for conduct relating to the 2008 proceeding.

Civil Court also erred in awarding tenant costs, including attorneys' fees incurred in the underlying sanctions hearing, "under the guise of a so-called fee on fee'" (Henriques v Boitano, 304 AD2d 467 [2003]), since 22 NYCRR 130-1.1, which must be construed narrowly (see Saastomoinen v Pagano, 278 AD2d 218 [2000]), does not explicitly grant courts authority to award fees incurred in the sanctions hearing (cf. Sage Realty Corp. v Proskauer Rose, 288 AD2d 14, 15 [2001], lv denied 97 NY2d 608 [2002]).

We reduce the award of costs, as indicated above, to an amount sufficient to reimburse tenant for "actual expenses reasonably incurred and reasonable attorney's fees" resulting from appellants' frivolous conduct in this holdover proceeding, which was dismissed on tenant's motion for summary judgment (see 22 NYCRR 130-1.1[a]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: February 25, 2011

20110225

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