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338 West 46st Street Realty LLC,Ny v. Robert Leonardi

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT April 2011 Term


July 15, 2011

338 WEST 46ST STREET REALTY LLC,NY
PETITIONER-LANDLORD-APPELLANT,
v.
ROBERT LEONARDI, RESPONDENT-TENANT-RESPONDENT. 338 WEST 46TH STREET REALTY LLC., PETITIONER-LANDLORD-APPELLANT,
v.
UTE SCHMID, RESPONDENT-TENANT-RESPONDENT. 338 WEST 46TH STREET REALTY LLC., PETITIONER-LANDLORD-APPELLANT,
v.
ROBYN J. DAVIS, RESPONDENT-TENANT-RESPONDENT. 338 WEST 46TH STREET REALTY LLC., PETITIONER-LANDLORD-APPELLANT,
v.
GEORGE MORTON, RESPONDENT-TENANT-RESPONDENT.
338 WEST 46TH STREET REALTY LLC., PETITIONER-LANDLORD-APPELLANT,
v.
EDWARD EISELE, RESPONDENT-TENANT-RESPONDENT.

Per curiam.

338 W. 46st St. Realty LLC v Leonardi

Decided on July 15, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

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

570421/10.

338 West 46st Street Realty LLC, Petitioner-Landlord-Appellant,

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

County Clerk's No.

Calendar No.11-111/115

In consolidated holdover summary proceedings, landlord appeals from an order of the Civil Court of the City of New York, New York County (Gary F. Marton, J.), dated September l5, 2009, which awarded tenants a recovery of attorneys' fees in the principal sum of $59,297.27, and from an amended order (same court and Judge), dated October 7, 2009, which modified the prior order by awarding tenants $5,336.75 in prejudgment interest on the attorneys' fee award.

Per Curiam.

Amended order (Gary F. Marton, J.), dated October 7, 2009, modified to reduce tenants' recovery of attorneys' fees to the principal sum of $46,137.27, and matter remanded to Civil Court for recalculation of prejudgment interest and entry of an appropriate amended judgment; as modified, amended order affirmed, without costs. Appeal from order (same court and Judge), dated September 15, 2009, dismissed, without costs, as it was superseded by the amended order.

Tenants achieved "prevailing party" status in successfully defending against the landlord's eviction claim, and thus were entitled to recover reasonable attorneys' fees pursuant to paragraph 20(b) of the governing lease agreements and the reciprocal provisions of Real Property Law § 234. On this record, and since the litigation entailed no fewer than 13 court appearances, together with extensive motion practice, the awards of attorneys' fees for legal services rendered in connection with the summary proceedings were supported by the record and were not excessive. We note that "[a]lthough a fee arrangement between the attorney and his or her client may be indicative of what is a reasonable fee, it is not determinative" (Manufacturers & Traders Trust Co. v Dougherty, 11 AD3d 1019, 1020 [2004]; see Matter of Rose BB, 35 AD3d 1044, 1046 [2006], appeal dismissed 8 NY3d 936 [2007]).

However, tenants were not entitled to be reimbursed for the portion of their legal fees incurred in connection with the satellite DHCR proceeding instituted by landlord. The agency proceeding was neither a "lawsuit" nor an "action or special proceeding" within the meaning of the lease attorney fee provision or RPL § 234 (see Chessin v New York City Conciliation & Appeals Bd., 100 AD2d 297, 306 [1984]; East 55th St. Joint Venture v Litchman, 126 Misc 2d 1049 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: July 15, 2011

against Robert Leonardi, Respondent-Tenant-Respondent. 338 West 46th Street Realty LLC., Petitioner-Landlord-Appellant, Ute Schmid, Respondent-Tenant-Respondent. 338 West 46th Street Realty LLC., Petitioner-Landlord-Appellant, Robyn J. Davis, Respondent-Tenant-Respondent. 338 West 46th Street Realty LLC., Petitioner-Landlord-Appellant, George Morton, Respondent-Tenant-Respondent. __ 338 West 46th Street Realty LLC., Petitioner-Landlord-Appellant,

Edward Eisele, Respondent-Tenant-Respondent.

In consolidated holdover summary proceedings, landlord appeals from an order of the Civil Court of the City of New York, New York County (Gary F. Marton, J.), dated September l5, 2009, which awarded tenants a recovery of attorneys' fees in the principal sum of $59,297.27, and from an amended order (same court and Judge), dated October 7, 2009, which modified the prior order by awarding tenants $5,336.75 in prejudgment interest on the attorneys' fee award.

Amended order (Gary F. Marton, J.), dated October 7, 2009, modified to reduce tenants' recovery of attorneys' fees to the principal sum of $46,137.27, and matter remanded to Civil Court for recalculation of prejudgment interest and entry of an appropriate amended judgment; as modified, amended order affirmed, without costs. Appeal from order (same court and Judge), dated September 15, 2009, dismissed, without costs, as it was superseded by the amended order.

Tenants achieved "prevailing party" status in successfully defending against the landlord's eviction claim, and thus were entitled to recover reasonable attorneys' fees pursuant to paragraph 20(b) of the governing lease agreements and the reciprocal provisions of Real Property Law § 234. On this record, and since the litigation entailed no fewer than 13 court appearances, together with extensive motion practice, the awards of attorneys' fees for legal services rendered in connection with the summary proceedings were supported by the record and were not excessive. We note that "[a]lthough a fee arrangement between the attorney and his or her client may be indicative of what is a reasonable fee, it is not determinative" (Manufacturers & Traders Trust Co. v Dougherty, 11 AD3d 1019, 1020 [2004]; see Matter of Rose BB, 35 AD3d 1044, 1046 [2006], appeal dismissed 8 NY3d 936 [2007]).

However, tenants were not entitled to be reimbursed for the portion of their legal fees incurred in connection with the satellite DHCR proceeding instituted by landlord. The agency proceeding was neither a "lawsuit" nor an "action or special proceeding" within the meaning of the lease attorney fee provision or RPL § 234 (see Chessin v New York City Conciliation & Appeals Bd., 100 AD2d 297, 306 [1984]; East 55th St. Joint Venture v Litchman, 126 Misc 2d 1049 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: July 15, 2011

20110715

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