The opinion of the court was delivered by: Jesse M. Furman, United States District Judge
Plaintiff Scott Stern, an attorney, brings this action, pro se, against Defendants Regency Towers, LLC ("Regency"); Sperber, Denenberg & Kahan, P.C. ("Sperber"); and New York City Marshal Thomas J. Bia. In his complaint, filed on December 5, 2011, Plaintiff brings a claim pursuant to Title 42, United States Code, Section 1983, alleging that Defendants violated his right to due process by evicting him from his apartment in December 2008 using an illegally backdated warrant of eviction.*fn1 Plaintiff also asserts claims for fraud (against Regency and Sperber), conversion (against Regency), and violation of New York Judiciary Law Section 487 (against Sperber), in connection with this eviction.
All three Defendants have moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for dismissal of the complaint in its entirety. Plaintiff has filed a motion for sanctions against Kenneth Litwack, Esq., Defendant Bia's attorney, and a motion for attorney's fees and costs against Regency. For the reasons stated below, the Court converts Defendants' motions to dismiss into motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure and grants those motions. In addition, the Court denies Plaintiff's motion for sanctions and grants in part and denies in part Plaintiff's motion for attorney's fees and costs.
The following facts are construed in the light most favorable to Plaintiff Stern. Stern, an attorney now living in Florida, brings this action against Defendants Regency, a limited liability corporation with its principal place of business in New York; Sperber, a New York law firm that has represented Regency in various state court matters; and Bia, a New York City Marshal. On May 31, 2005, Stern entered into a residential lease with Regency for an apartment located on East 63rd Street in New York City (the "2005 lease"). (Sperber Decl. Ex. B, at 8-14). The 2005 lease required Stern to pay $2,550.00 per month in rent and to provide Regency with a security deposit in the amount of $7,650.00. (Id. at 8, ¶¶ 1, 4). The lease also provided that in the event Stern breached any of its terms, Regency would be authorized to "apply or keep all or any part of" Stern's security deposit, "to the extent necessary for the payment of rent, additional rent, or damage of landlord resulting from the breach . . . ." (Id. ¶ 4).
On July 1, 2006, Stern and Regency renewed the lease, with an expiration date of June 30, 2008 (the "2006 lease"). (Id. at 1-7). Except as expressly provided in the 2006 lease, all terms and conditions of the 2005 lease remained in full effect. The "Holdover Rider" to the 2006 lease, which Regency and Stern both signed, provided that "the parties recognize and agree that the Landlord has no obligation to offer the Tenant a Renewal Lease." (Id. at 7). The rider also contained a penalty provision that doubled Stern's monthly rent in the event that Stern refused to vacate the apartment at the expiration of the 2006 lease. The rider further provided that "if the Landlord is required to commence legal proceedings based on the Tenant's failure to vacate . . .
the Tenant shall be liable for legal fees. . . . Such sum shall be due as additional rent and if not paid, may be deducted from the security deposit by the Landlord." (Id.).
In March 2008, Regency, through its counsel, Sperber, commenced a summary non-payment proceeding in New York Housing Court based on Stern's failure to pay his monthly rent pursuant to the terms of the 2006 lease (the "nonpayment proceeding"). On August 27, 2008, after oral argument on Regency's motion for summary judgment and Stern's cross-motion to dismiss, New York Housing Court Judge Marcia Sikowitz granted Regency's motion and denied Stern's cross-motion. (Sperber Decl. Ex. D). The court awarded Regency a final judgment in the amount of $8,789.00, which represented the rent that Stern owed Regency through April 2008, and ordered the issuance of an eviction warrant forthwith. (Id.). Stern sought a stay of this judgment in New York Civil Court, which was granted by Judge Timmie Elsner on October 21, 2008. (Sperber Decl. Ex. E). Thereafter, Judge Elsner determined that Stern owed Regency $25,589.00, and ordered him to immediately tender $14,389.00 to Regency. Judge Elsner stayed execution of the warrant of eviction through October 28, 2008, to give Stern the opportunity to pay the remaining balance of $11,200.00. (Id.). On October 24, 2008, Stern filed a notice of appeal of the August 27, 2008 and October 21, 2008 decisions. (Sperber Decl. Ex. F).
On July 14, 2008, fourteen days after the 2006 lease expired, Regency filed a second proceeding against Stern in housing court, based upon the expiration of the lease (the "holdover proceeding"). (Sperber Decl. Ex. G). Regency moved for summary judgment in the holdover proceeding, which Stern did not oppose. By order dated September 29, 2008, New York Housing Court Judge Gary Marton granted Regency's motion, awarding Regency possession of Stern's apartment, a money judgment in the amount of $22,400.00, and issuing a warrant of eviction forthwith. (Sperber Decl. Ex. H). Judge Marton specifically stated that the warrant of eviction was not stayed. (Id. at 2 ("[T]he motion is granted as follows: . . . warrant forthwith, no stay . . . .")). Stern did not file a notice of appeal of this order.
Subsequently, Stern filed a motion in the Appellate Division, First Department, seeking stays of the judgments and warrants in the nonpayment and holdover proceedings. Stern also sought a temporary restraining order from the court, which was conditioned upon Stern's deposit of $5,000.00 with the court. Stern deposited this money with the court on November 6, 2008. (Sperber Decl. Ex. N, at 5, ¶¶ 15-16). On November 21, 2008, the Appellate Division stayed execution of the warrant in the non-payment proceeding, requiring that Stern tender $7,500.00 and the November and December 2008 use and occupancy fees to Regency on or before December 5, 2008, to avoid eviction. (Sperber Decl. Ex. J). Significantly, however, the Appellate Division expressly declined to review the lower court's decision in the holdover proceeding or issue a stay of the warrant in that proceeding, holding that it did not have jurisdiction unless and until Stern filed and served a notice of appeal. (Id.).
Stern alleges that on November 24, 2008, he delivered a certified check to Regency in compliance with the Appellate Division's November 21, 2008 order (Compl. ¶¶ 13-14); Regency claims that it never received this check. (Regency's Mem. of Law in Supp. of Mot. to Dismiss ("Regency's Mem.") 4). As reflected in the documents Regency has filed with the Court, on November 24, 2008, Stern's bank issued a cashier's check payable to Regency in the amount of $2,800.00 (significantly less than the amount Stern had been ordered to tender to Regency), but on December 2, 2008, Stern reported this check as stolen. (Sperber Decl. Ex. O). On December 3, 2008 (the date on which he was evicted, as discussed below), Stern informed Regency via e-mail that he had cancelled the check because Regency had not cashed it. (Sperber Decl. Ex. L).
On November 25, 2008, Stern left his apartment and did not return until December 2, 2008. (Compl. ¶¶ 15-16). Upon his return, Stern found a notice of eviction inside his apartment. The notice, dated November 24, 2008, stated that the court had issued a warrant for his eviction and that he "may be evicted, without further notice," on December 3, 2008 (the sixth business day after November 24, 2008), or thereafter. (Sperber Decl. Ex. T, at 2 (capitalization altered)).*fn2
The notice included the following caution:
The ONLY way you can stop this eviction is if a Court issues an order to show cause that stays your eviction. You may apply for such an order at the Civil Court, Landlord -- Tenant part, in your borough. (Id.). Stern alleges that he was not served with this notice on November 24, 2008. (Compl. ¶ 19). The process server's affidavit, however, reflects that he attempted to serve Stern at his apartment on November 22, 2008, at 8:45 p.m., and again on November 24, 2008, at 3:45 p.m. (Sperber Decl. Ex. T, at 3). According to the process server, after this second visit to Stern's apartment, the process server affixed a copy of the notice of eviction to Stern's door and ...