Petitioner brought a holdover petition seeking removal of the respondent from the apartment for failure to cure lease violations for which numerous Notices to Cure were served on respondent. The respondent had occupied the subject apartment pursuant to a proprietary lease. The petitioner moved for summary judgment contending that pursuant to the business judgement rule it was entitled to a judgment of possession based upon the determination rendered by its Board of Directors at the March 15, 2016 Special Meeting. In a Decision and Order dated November 16, 2017 the Court granted a judgment of possession in favor of petitioner and a final judgment in the amount of $4,914.03. The Court directed petitioner to submit an affirmation for attorney fees within (30) thirty days of the decision. Petitioner submitted an affirmation seeking its attorneys fees plus costs and disbursements. Respondent has not filed any opposition to the motion.The subject proprietary lease agreement provides in Paragraph 28 as follows:Reimbursement of Lessor’s Expenses28. If the Lessee shall at any time be in default hereunder and the Lessor shall incur any expense (whether paid or not) in performing acts which the Lessee is required to perform, or in instituting any action or proceeding based on such default, or defending, or asserting a counterclaim in any action or proceeding brought by the Lessee, the expense thereof to the Lessor, including reasonable attorneys fees and disbursements, shall be paid by the Lessee to the Lessor, on demand, as additional rent.In his affirmation in support of an award of attorney’s fees, the petitioner’s attorney, Lewis Montana, states that he has rendered professional services to the petitioner in connection with the subject matter of this litigation since May of 2012. He further affirms that the services performed by his firm for petitioner have been generally billed on an “as needed basis” with most services being billed at the then prevailing hourly fee basis and some of the work being billed on a flat fee basis. Mr. Montana further asserts that the firms services consisted of the following: consultations and communications with petitioner and its managing agents; legal research and review of organizational documents; telephonic and written communications with respondent’s various attorneys; preparation and service of Notices to Cure Defaults; preparation of papers for a Special Meeting of Directors; review of proposed witness statements before the Board of Directors and communication relating to the Special Meeting; arrangement for videographer at Special Meeting; attendance at the Special Meeting; preparation for service of Notices of Termination of the Proprietary Lease; preparation of Notice of Petition and Petition, arrangement to procure certified copy of ownership deed; attendance at Court; preparation of notice of motion and papers in support; and related services regarding petitioner and respondent. Mr. Montana further states that his customary billing rates were as follows from 2012 to 2017: 2012-$225, 2013-$270, 2014-$285, 2015-$295, 2016-$310, 2017-$320. The customary billing rates for Matthew Montana of his firm were as follows: 2016-$230, 2017-$240. Attached to Mr. Montana’s affirmation as Exhibit “C” are his firm’s billing sheets from May 2012 through October 2017 regarding the legal fees and costs and disbursements incurred by petitioner relating to respondent’s tenancy. Mr. Montana asserts that in total petitioner is seeking $28,864.51 in attorneys fees and $1,477.11 in costs and disbursements.Courts have the discretion to determine what constitutes reasonable attorneys fees. Nestor v. Britt, 16 Misc 3d 368 (Civ Ct NY County 2007). Moreover, in an action for an award of attorneys’ fees, the factors to be considered by the Court include time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer’s experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved. Dillon v. Dean, 256 AD2d 436 (2d Dept. 1998) citing Matter of Freeman, 34 NY2d 1, 9 (1974 ).After reviewing the billing sheets submitted by petitioner, the Court finds that rates charged by counsel and his firm are reasonable. However, all of the legal services rendered before April 27, 2017 are not sufficiently related to the instant summary proceeding to be considered reasonable for an award of attorneys fees in this action. Rather, the legal services and disbursements that accrued from May 2012 through to April 24, 2017, while relating to respondent’s tenancy under the proprietary lease, were not, in fact, fees and costs that were incurred by petitioner in commencing and prosecuting the instant action. Although the services provided were to address issues with respondent’s tenancy under the proprietary lease that ultimately led to the instant summary proceeding, said actions took place over a five year period, from May 2012 to December 2015, wherein petitioner served four Notices to Cure Defaults without pursuing any further actions based upon said defaults before finally deciding to call a Special Meeting of its Board of Directors in March 2016 to act on petitioner’s alleged breach of the proprietary lease. As such, those fees and costs are too tenuous to the instant proceeding to be considered in a calculation of reasonable and appropriate fees and costs for an award of attorneys fees in the instant action.Moreover, the first three Notices to Terminate served on respondent after the resolution to terminate respondent’s tenancy had been voted by the Board of Directors were voided by petitioner’s own carelessness in accepting maintenance payments after the termination dates set forth in the notices. As such, the additional attorneys fees and costs associated with legal services rendered before the fourth notice of termination was drafted on April 27, 2017 were incurred as a result of petitioner’s own negligence and the Court does not consider such additional fees and costs to be reasonable for an award of attorneys fees. Based upon the affirmation submitted, a thorough review of the billing invoices submitted and in consideration of the above noted factors, the Court awards the petitioner attorneys’ fees in the amount of $13,190.00 plus costs and disbursements in the amount of $530.28.Accordingly, the Court directs respondent to pay petitioner a total of $13,720.28 for its attorneys fees plus costs and disbursements in the instant matter.This constitutes the Decision and Order of this Court.The Court considered the following papers on this motion: Affirmation In Support of Petitioner’s Claim for Attorneys’ Fees and Disbursements dated December 1, 2017; Exhibits A-D.Dated: April 5, 2018Mount Vernon, New York
