ADDITIONAL CASES Quality King Distributors, Inc., Pro’s Choice Beauty Care, Thomas Butkiewicz, Plaintiffs v. S3 Digital Corporation, Circle Media, Inc., Defendants; Third-Party 595907/2015 The following e-filed documents, listed by NYSCEF document number (Motion 009) 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 495, 496, 498, 500, 501, 502, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 518, 519, 520, 521, 522, 523, 524, 552, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566, 567, 568, 569, 570, 571, 572, 573, 574 were read on this motion to/for ATTORNEY — FEES. The following e-filed documents, listed by NYSCEF document number (Motion 010) 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475, 476, 477, 478, 479, 480, 481, 482, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 493, 494, 497, 499, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 553, 575, 576, 577, 578, 579 were read on this motion to/for ATTORNEY — FEES. DECISION ORDER ON MOTION Plaintiff-landlord CHIP Fifth Avenue LLC (CHIP) brought this action to recover on guaranties, following the breach of a commercial lease (Guaranty Action). CHIP now moves (in motion sequence number 009) for an order against defendant Quality King Distributors, Inc. (Quality King) awarding it: (1) the attorneys’ fees and costs incurred in litigating this action; (2) the attorneys’ fees and costs that CHIP continues to incur in connection with the instant motion (i.e. fees on fees); and (3) prejudgment interest on the foregoing amounts, pursuant to CPLR 5001. CHIP also moves (in motion sequence number 010) for the same relief in connection with Quality King Distributors, Inc. v. CHIP Fifth Avenue LLC, index No. 654924/2016, a related action brought by CHIP’s commercial tenant alleging wrongful eviction (Wrongful Eviction Action). By decision and order dated April 11, 2017, the two actions were joined for purposes of discovery and trial (GA NYSCEF Doc No. 188).1 The underlying facts of these cases are set out in detail in a decision and order dated April 7, 2020 in the Wrongful Eviction Action (Wrongful Eviction Decision) (Sherwin affirmation, exhibit 73).2 Therefore, familiarity with the facts is assumed and only a brief overview of the two actions is provided. Unless indicated otherwise, defined terms in the Wrongful Eviction Decision have the same meaning when used herein. BACKGROUND On October 29, 2015, after S3 stopped paying rent, CHIP commenced the instant action against Quality King and three other guarantors (GA NYSCEF Doc No. 1). By decision and order dated July 25, 2016, the court granted CHIP’s motion for partial summary judgment against Quality King “on the basic issue of liability” under the guaranty and found that CHIP was “also entitled to legal fees to date,” but denied the motion with respect to two months of rent and re-letting costs (GA NYSCEF Doc No. 71 at 3). By decision and order dated October 5, 2016, the court granted CHIP’s motion to reargue and reversed its prior determination, finding that CHIP was entitled to reasonable re-letting costs, but that the extent and reasonableness of those expenses and any legal fees had to be litigated (GA NYSCEF Doc No. 160). The court also granted Quality’s King motion to reargue but, upon reargument, adhered to its prior determination (GA NYSCEF Doc No. 159). On October 17, 2016, judgment was entered in CHIP’s favor in the amount of $308,743.89 (GA NYSCEF Doc No. 168). Quality King appealed and, on February 1, 2018, the Appellate Division, First Department, affirmed, finding that “the guarantor’s liability can be greater than that of the obligor tenant, inasmuch as the lease and guarantees were separate undertakings, and the latter is enforceable without qualification or reservation” (CHIP Fifth Ave. LLC v. Quality King Distributors, Inc., 158 AD3d 418, 419 [1st Dept 2018]; Sherwin affirmation, exhibit 11). After failed attempts to reargue and appeal to the Court of Appeals (Sherwin affirmation, exhibits 12, 13), in October 2018, Quality King satisfied the October 17, 2016 judgment (GA NYSCEF Doc No. 277) and the parties settled the remaining claims, with the exception of CHIP’s claim for attorneys’ fees and costs (GA NYSCEF Doc Nos. 286, 287). While litigation continued in the Guaranty Action, on September 16, 2016, S3 commenced the Wrongful Eviction Action against CHIP. By decision and order dated April 11, 2017, the two actions were joined for purposes of discovery and trial only (GA NYSCEF Doc No. 188). In October 2017, S3 filed for bankruptcy. Quality King obtained an assignment of S3′s Wrongful Eviction Action (WEA NYSCEF Doc Nos. 76-79) and CHIP filed a claim in the bankruptcy proceeding. On May 31, 2018 the bankruptcy court approved the bankruptcy plan. In connection with the plan, CHIP executed a broad third-party release of its claims against S3 and its assignees (WEA NYSCEF Doc Nos. 217, 220). On June 14, 2018, Quality King substituted as plaintiff in the Wrongful Eviction Action (WEA NYSCEF Doc Nos. 75-79). On March 15, 2019, Quality King moved in the Guaranty Action for summary judgment dismissing CHIP’s sole remaining claim for attorneys’ fees and cost (GA NYSCEF Doc No. 288). By a decision and order dated June 28, 2019, this court denied the motion (GA NYSCEF Doc No. 334). In so doing, the court rejected Quality King’s contention that the claim was released pursuant to the bankruptcy plan, finding that, because “[CHIP] [was] asserting its claim for attorneys’ fees directly against defendant Quality King, in its capacity as S3′ guarantor,” rather than against S3 or its assignees, “the third-party release [did] not bar plaintiff’s claim” (id. at 2). The court further held that “the guaranty provides that guarantor’s liability shall not exceed the indebtedness of the tenants except that the landlord may recover the cost of collection (including attorneys’ fees) in connection with its enforcement of the guaranty,” that “the First Department ha[d] already held that the guaranty entitled landlord to collect attorney’s fees in connection with this collection proceeding and [that] the release of S3′s obligations to the landlord [did] not change this result, as the guaranty explicitly provides” (id.). Also, on March 15, 2019, both Quality King and CHIP moved for summary judgment in the Wrongful Eviction Action (WEA NYSCEF Doc Nos. 118, 153). By decision and order dated April 7, 2020, this court granted summary judgment in CHIP’s favor to the extent of dismissing Quality King’s complaint (WEA NYSCEF Doc No. 287, 2020; Sherwin affirmation, exhibit 73, Wrongful Eviction Decision). The court also granted summary judgment in Quality King’s favor to the extent of dismissing CHIP’s counterclaim for attorneys’ fees and costs. The court explained that this was because, “[CHIP's] counter-claim for attorneys’ fees in [the] Wrongful Eviction Action [was] asserted against Quality King in its capacity as S3′s assignee” and, as S3′s assignee, “Quality King [was] a ‘Released Party’ under the bankruptcy plan” (Wrongful Eviction Decision at 11). The court did not address the parties’ contentions pertaining to CHIP’s claim for attorneys’ fees under the guaranty, finding that such relief had to be sought under the index number for the Guaranty Action (id. at 13). DISCUSSION On the instant motions, the parties dispute whether CHIP is: (1) collaterally estopped from seeking attorneys’ fees and costs incurred in the Wrong Eviction Action; (2) entitled to fees on fees; and (3) entitled to prejudgment interest on its ultimate award of attorneys’ fees. The parties also dispute whether CHIP’s claimed attorneys’ fees and costs are reasonable. Collateral Estoppel Quality King argues that this court has already determined that CHIP released S3 and Quality King, as S3′s assignee, in the bankruptcy proceeding from any obligation under the lease, including the attorneys’ fees and costs incurred in the Wrongful Eviction Action. It argues that CHIP may not relitigate the issue. In addition, Quality King contends that, because of this determination, there is no “Indebtedness…of S3 to CHIP under the Lease” (GA NYSCEF Doc No. 504, guaranty at 1) and CHIP is limited to the recovery of the “costs of collection” incurred in the Guaranty Action (id.). Quality King also argues that, for the same reasons, CHIP cannot recover the fees and costs incurred in the bankruptcy proceeding. CHIP counters that the Wrongful Eviction Decision addressed Quality King’s liability in its capacity as S3′s assignee only and that, pursuant to the broad terms of the guaranty, Quality King remains liable in its capacity as guarantor. The doctrine of collateral estoppel is inapplicable here. Collateral estoppel prevents parties from relitigating previously decided issue where, among other things, “the issues in both proceedings are identical” (Gersten v. 56 7th Ave. LLC, 88 AD3d 189, 201 [1st Dept 2011]). The issue before the court in the Wrongful Eviction Action was whether Quality King, in its capacity as S3′s assignee, was liable for CHIP’s attorneys’ fees and costs (Wrongful Eviction Decision at 11-13). The court expressly declined to decide whether Quality King could be held liable in its capacity as S3′s guarantor, finding that the issue had to be raised in the Guaranty Action (id. at 13), which CHIP now does. In its capacity as guarantor, Quality King is liable for the reasonable attorneys’ fees and costs that CHIP incurred in connection with the Wrongful Eviction Action and in the bankruptcy proceeding. First, the guaranty covers these expenditures. It provides that Quality King “unconditionally and absolutely guarantees and promises to pay CHIP and its successors and assigns, any and all Indebtedness…of S3 to CHIP under the Lease” (guaranty at 1). The guaranty defines “‘Indebtedness’…in its most comprehensive sense and includes all rental obligations of S3 to CHIP, arising under and pursuant to the Lease” (id.). The lease defines “additional rent” to include: “reasonable attorneys’ fees and disbursements…which Landlord may incur or pay out by reason of, or in connection with:…iii. any default by Tenant in the observance or performance of any obligation under the lease…v. any action or proceeding brought by Tenant against Landlord…in which Tenant fails to secure a final judgment against Landlord” (GA NYSCEF Doc No. 502, lease, 52 [a] [iii], [v]). Quality King failed to secure a final judgment against CHIP in the Wrong Eviction Action. Its complaint was dismissed. Therefore, CHIP’s reasonable attorneys’ fees and disbursements in that action are included in the guaranteed “Indebtedness.” The fees that CHIP incurred in the bankruptcy proceeding (see Sherwin affirmation, exhibits 45-48) are also recoverable as “Indebtedness” under the guaranty, because they were a result of S3′s default under the lease. Second, CHIP’s release of S3 and its assignees in the bankruptcy proceeding merely released those parties from their obligations under the lease. It did not eliminate the obligation itself or alter Quality King’s liability under the guaranty (see CIT Group/Equip. Fin., Inc. v. Riddle, 31 AD3d 477, 478 [2d Dept 2006] [finding that the guarantor remained liable for debts, interest, late charges and reasonable attorneys' fees, because it had not been discharged from the debt and because "(a) guarantor's liability for a corporate debt is not affected by the corporation's bankruptcy filing"]). Moreover, the guaranty expressly contemplates this exact scenario and provides that: “any change in the status of S3, shall not release Guarantor from liability under this Guaranty”; “Guarantor…specifically assume[s] any and all risks of a bankruptcy or reorganization proceeding with respect to the S3″; and “in the event a settlement is made with S3 for less than the amount due CHIP, Guarantor shall not be released from liability for the balance still due CHIP even though S3 shall have been released from said Indebtedness” (guaranty at 1). Accordingly, in its capacity as guarantor, Quality King remains liable for the reasonable attorneys’ fees and costs that CHIP incurred in connection with the Wrongful Eviction Action and the bankruptcy proceeding (see Taubes v. Stuart, 181 AD2d 669, 671 [2d Dept 1992] [finding that the corporate debtor's bankruptcy did not affect the guarantor's liability and that the guaranty's language, stating that "'(g)uarantor waive(d) any defense arising…by reason of the cessation or modification from any cause whatsoever of the liability of Debtor(,)' prevent(ed) the guarantor from being discharged from liability based upon the (debtor's) discharge…from liability in bankruptcy"]; see also First Natl. Bank of Highland v. Burley, 162 AD2d 910, 911 [3d Dept 1990] [finding that the lender's "compromise of its claim against the bankruptcy estate and (the debtor's) discharge in bankruptcy did not impair (the lender's) rights against (the guarantor) under the guarantee," which provided for "settlements and compromises as (lender) may deem proper with respect to any of the indebtedness, liabilities and obligations covered by this guaranty"]). Accordingly, CHIP is entitled to recover reasonable attorneys’ fees and costs incurred in the Wrongful Eviction Action and the bankruptcy proceeding. Fees on Fees CHIP argues that it is entitled to the attorneys’ fees incurred in bringing the instant motions as “the costs of collection (including attorneys’ fees)” incurred in “pursu[ing] collection proceedings” against Quality King (guaranty at 1). Quality King counters that the guaranty lacks the specific language required for the recovery of fees on fees. “[A]n award of fees on fees must be based on a statute or on an agreement” (Sage Realty Corp. v. Proskauer Rose, 288 AD2d 14, 15 [1st Dept 2001]). An attorneys’ fee provision must be strictly construed, as it “is contrary to the well-understood rule that parties are responsible for their own attorney’s fees” (Hooper Assoc. v. AGS Computers, 74 NY2d 487, 492 [1989]). Where “it is not ‘unmistakably clear’ from the parties’ agreement that fees on fees were contemplated, such an award is not allowed” (Batsidis v. Wallack Mgt. Co., 126 AD3d 551, 553 [1st Dept 2015]; see also Jones v. Voskresenskaya, 125 AD3d 532, 534 [1st Dept 2015]). Here, the guaranty provides for payment of “all Indebtedness,” defined as “all rental obligations of S3 to CHIP, arising under and pursuant to the Lease” (guaranty at 1), which includes “reasonable attorneys’ fees and disbursements” that the landlord incurs in successfully defending or prosecuting any action in connection with the lease (see lease,
