Opinion
092546/2017
09-06-2019
Yeshiva Chanoch LENAAR, Petitioner, v. Oholei Yosef Yitzchok LUBAVITCH a/k/a Oholei Yosef Yitzchok, Respondent.
This is a commercial summary holdover proceeding that was commenced by the Petitioner by the service of a 30-day termination notice seeking to recover possession of the premises known as 876-878 Eastern Parkway, Basement kitchen, first floor, second floor, third floor as specified in the petition, Brooklyn, NY 11213.
The 30-day termination terminated the month-to-month tenancy of the Respondent effective October 31, 2017. When the Respondent did not voluntarily vacate the subject premises, the Petitioner had served a notice of petition and petition returnable on November 22, 2017 in Commercial Part 52.
On the return date of November 22, 2017, the case was adjourned to December 20, 2017. The court file states "stipulation to restore heat; see stip. index on number 81907/2017".
During the adjourn date, the Respondent moved by motion to dismiss the petition and on December 20, 2017, the court file reflects that the Respondent's motion to dismiss was adjourned to January 12, 2018 pursuant to a two-attorney stipulation in which the parties agreed to a motion practice briefing schedule; the Petitioner agreed to serve and file opposition papers on or before January 15, 2018; and the Respondent agreed to serve a reply on or before January 11, 2018.
On January 12, 2018, after oral argument, the motion was submitted to the Hon. Joy Campanelli. By decision and order dated January 24, 2018, Judge Campanelli found that the Petitioner sustained its prima facie case of proper service of process and denied the motion to dismiss. The Respondent claimed numerous defects in the pleadings, specifically, the affidavit of service was defective in its description of service on the requisite directors of the Respondent corporation. The Court found proper service and found insignificant the alleged defects in the affidavit of service. The motion having been denied, the Court then directed the Respondent to serve and file its answer to the petition within 30 days of the entry of said order.
The court file also reflects that on February 27, 2018, the Respondent, by counsel, Edward J. Weiss, Esq., served and filed a notice of appeal to the Appellate Term, 2nd, 11th and 13th Judicial Districts of the decision and order of Judge Campanelli.
It appears from the record that the Respondent failed to serve and file an answer as required by the Court order on or before February 23, 2018.
Based on the default by the Respondent, in or about March 5, 2018, the Petitioner served and filed a notice of motion returnable on March 15, 2018 seeking entry of a default judgment against the Respondent. Although the Court record is unclear, it appears that neither party was present in Court on the return date, so the Court, in its discretion, adjourned the case to March 15, 2018 and post cards were mailed to both sides by the Court of the new date.
On or about March 12, 2018, the Respondent, by cross motion, moved seeking leave of the court to serve and filed a late answer and demanding an immediate traverse hearing.
On March 18, 2018, after substantial conference with the undersigned judge and the attorneys for the respective parties, the parties were finally able to reach a settlement. The material terms of the agreement provided as follows: Respondent consented to a final judgment of possession in favor of the Petitioner with the warrant of eviction to issue forthwith and the execution stayed to June 30, 2018 for the Respondent to vacate the premises known as 878 Eastern Parkway, Brooklyn, NY and until July 20, 2018 for the Respondent to vacate the premises known as 876 Eastern Parkway, Brooklyn, NY. Additionally, the Respondent agreed to pay $3500.00 in use and occupancy for the months of April, May, June, and July 2018.
In the stipulation, the Respondent also agreed to discontinue without prejudice an action commenced by the Respondent against the Petitioner in the Civil Court under index number 81907/2017. Both parties reserve their rights and defenses to all claims except those that were not waived in the agreement. If there is a default in the terms and conditions of the agreement, the Petitioner could execute on the warrant of eviction after the service of a Marshall's notice and a notice of default to Respondent's attorney. Lastly, the Petitioner also agreed to maintain and provide essential services like heat and hot water.
On March 27, 2018, New York City Marshal Henry Daley requisitioned a warrant of eviction and on March 30, 2018, the warrant issued to him.
The Respondent failed to vacate the subject premises as agreed. On July 20, 2018, the Respondent was served with a New York City Marshal's notice of eviction in conformity with the two-attorney stipulation.
On July 31, 2018, the Respondent commenced an action in the Federal Bankruptcy Court seeking a stay of this proceeding; and in defense of its right to possession, the Petitioner, on August 7, 2018, moved the Bankruptcy Court to vacate the automatic bankruptcy stay.
On August 30, 2018, the Hon. Elizabeth Strong, found "pursuant to Bankruptcy Code Section 362(b)(10), the automatic stay does not operate to prevent acts by the Landlord to recover possession of the Premises because the Debtor's lease terminated by the expiration of the dated term of the lease before the commencement of this case . To the extent that the automatic stay could be deemed applicable, the automatic stay is modified to allow the Landlord to pursue its rights under applicable law with respect to the premises". (emphasis added by J. Stong).
After the bankruptcy stay was lifted, in or about September 5, 2018, after re-service of Marshal's notice of eviction on the Respondent, in or about September 13, 2018, the Respondent moved this Court by Order to Show Cause returnable on September 27, 2018 seeking a stay of the execution of the warrant of eviction " so that the Respondent and its students may vacate the subject premises with dignity".
In the Respondent's application to stay the execution of the warrant of eviction, the Respondent asserts that the premises is being used as a Jewish educational institution and contains at least 50 children. After substantial failed negotiations between the Respondent and the Petitioner for the Respondent to purchase the property, the Respondent seeks additional time to vacate the premises. The Respondent also represents that the Respondent has secured a new commercial space but required two additional weeks to move out to ensure that there was no disruption in the children's education.
By notice of cross motion, returnable on September 27, 2018, the Petitioner moved for sanctions against the Respondent and the Respondent's attorney and for the award of attorney's fees and costs pursuant to 22 NYCRR 130 - 1.1. The Petitioner's attorney argues that the Respondent's attorney, Mr. Edward Weiss, Esq., failed to notify the Petitioner of the Order to Show Cause prior to its submission for signature before the Civil Court and also failed to provide a complete copy of the Order to Show Cause with the supporting exhibits. The Petitioner argues that the Respondent has engaged in conduct that constitutes frivolous conduct as proscribed under the law. The Petitioner argues that the Respondent has used the judicial system to intentionally and willfully delay or prolong the surrender of possession of the subject premises by June 30, 2018 and July 31, 2018 as agreed. The Petitioner argues that the "barrage of litigation" employed by the Respondent includes, but is not limited to, the service and filing of a motion to dismiss on the grounds of improper service of process when the Respondent had personal knowledge that service was, in fact, proper; filed an appeal of the court decision and order on its motion to dismiss which was voluntarily withdrawn several months later; commenced an action in the Civil Court without merit; and commenced a petition for Chapter 11 Bankruptcy Court to stay the execution of the warrant of eviction pending before the Court.
After oral argument on the Order to Show Cause and cross motion, by decision and order dated September 27, 2018, the undersigned judge found that the Respondent had exhausted the statutory stay of execution of the warrant pursuant to RPAPL § 753(1). Furthermore, this Court "found that notwithstanding the fact that the premises is occupied for educational purposes, the Respondent has acted in bad faith by using the judicial system (filing bankruptcy) with no legal grounds to remain in possession of the subject premises to the substantial detriment of the Petitioner. It is important to note that the Respondent has used motion practice including this Order to Show Cause to remain in possession for nearly one year after the commencement of this simple holdover proceeding. The equities balance in favor of the Petitioner that has the undisputable right to possession pursuant to the two-attorney stipulation and no facts have been presented to allow this Court to exercise its discretion to stay the execution of the warrant of eviction. The motion is denied, all stays are vacated and the Petitioner may proceed with the immediate eviction of the Respondent with no service of the marshal's notice and if required it may be served by mail only". The Court's order also adjourned the Petitioner's motion for sanctions to November 28, 2018 due to the unavailability of this Court.
Furthermore, the court record shows that on October 1, 2018, NYC Marshal Daley granted the Petitioner legal and actual possession of the subject premises.
On October 12, 2018, the Respondent moved the Court by Order to Show Cause returnable on October 16, 2018 for leave to allow the Respondent access to the demised premises to remove all of its personal property. The Respondent asserts that it did not have an opportunity to remove all of its personal property because of the observance of a Jewish holiday. The Respondent states that the personal property that remained in the subject premises were school supplies and other materials required for the Respondent to operate the new school.
It appears that on the return date, the Petitioner did not appear and Judge Richard J. Monteleone by decision and order, issued an order that directed the Petitioner to allow access to the Respondent to remove its personal property on October 16, 2018 from 12:00 pm. to 5:00 pm., October 17, 2018 from 9:00 am to 5:00 pm., on October 18, 2018 from 9:00 am to 5:00 pm., and on October 19, 2018 from 9:00 am to 12:00 pm.
It appears that while Petitioner's motion for sanctions against Respondent was still pending before the Court, the Respondent presented another Order to Show Cause returnable on October 22, 2018. The Respondent alleges that the Petitioner's attorney tried to circumvent the court order for access and threatened to instruct the Petitioner to leave the Respondent's property outside of the subject premises. The Respondent contends that when someone came to remove their property from the premises, the Respondent discovered that their personal property had been combined with the Petitioner's property. The Respondent claimed that she and her staff had to go through all the boxes and separate their possessions from the Petitioners and it took more time than anticipated.
After oral argument and conference between the attorneys for the respective parties, this Court granted the Respondent access on October 23, 2018 between 9:00 am to 5:00 p.m. to remove any and all remaining property in possession. In the event that the property was not removed by 5:00 p.m., it would be deemed abandoned and disposable by the Petitioner with no liability. The parties also reserve all claims and defenses in the subject proceeding.
On November 28, 2018, by order of the Court, the motion for sanctions was adjourned to December 10, 2018 at 10:30 am in Commercial Part 52 to be referred to the undersigned. The order also states that the Respondent's Supreme Court attorney, Mr. Edward Geoerirtz, shall appear at said hearing.
On the first date of the hearing on December 10, 2018, Edward Jay Weiss, Esq., appeared on behalf of the Respondent and Susan Mauro, Esq., appeared on behalf of the Petitioner. Mr. Edward Geoerirtz, Esq. did not appear. Attorney Weiss stated, in summary, that there has been a breakdown in the attorney-client relationship between he and the Respondent. The parties dispute litigation strategy and his client had made threats of a complaint to the Grievance Committee against him and he orally moved to be relieved as counsel. He had prepared the discharge papers discussed by the parties out of court, and presented them to the Respondent. After agreement with her attorney, the Respondent reluctantly discharged him and he did not participate in the hearing. The Respondent appeared without an attorney.
TESTIMONY AT THE HEARING
The Petitioner, in opening statement, argues that the Respondent has intentionally and willfully delayed this proceeding through tactical legal strategy in four branches of the judicial system to defeat and impede the Petitioner's right to possession. Respondent filed bankruptcy and the bankruptcy was dismissed; filed for a TRO in the Supreme Court that the Court declined to sign; sought relief from eviction by the Appellate Division that was similarly denied. The Petitioner also asserts that the Respondent submitted a demand for arbitration and commenced a Supreme Court action against the Petitioner to allegedly enforce a provision of the expired lease that any dispute between the parties must be submitted for arbitration. Petitioner argues that it has been billed in excess of $90,000 in legal fees to obtain possession wrongfully withheld by the Respondent with this matter.
The Petitioner called Avi Lesches as its first witness. He testified that he is the agent for the owner. Yaakov Bryski is the landlord and owner of 876-878 Eastern Parkway and has owned the building since the 1980's. The property has been owned and operated as a preschool and he testified that he was intimately familiar with the building. He also testified that he has participated in many of the court appearances and hearings involving this Respondent including the Bankruptcy Court, Supreme Court, and the Appellate Division. He was authorized by the owner and landlord to testify and to act on his behalf. The witness was clear and detailed in his testimony. He was able to recite nearly all of the court appearances, describe in detail the disposition at nearly each court appearance and even was able to name the particular justice of the Appellate Division that denied Respondent's Order to Show Cause, specifically, Justice Betsy Barrios.
He testified that he had tried for more than a year to resolve the issues with the Respondent to no avail before he was authorized to commence this proceeding. In fact, the parties discussion began as far back as 2015 and the root of the problem was that the parties could not agree on a reasonable price for the Respondent to purchase the property. He testified that he spoke to the Respondent's agent and she agreed to vacate in the summer of 2017. After their meeting in August 2017, the Petitioner began to renovate the school, and subsequently, all communication between the parties broke down.
He further testified that when the Petitioner began construction at the property, Respondent's agent began to interfere with the construction. In his opinion, it has been a year and a half of an ongoing battle with the Respondent's agent.
He stated that after the Petitioner was granted possession on October 1, 2018, he was never served with the Order to Show Cause dated October 12, 2018. So, he was not present to oppose the motion and testified that it was in bad faith. He asserted that the Respondent's own attorney, Mr. Mark R. Bernstein, Esq., confirmed in his affidavit in the Bankruptcy Court that the Respondent commenced the action in the Bankruptcy Court in bad faith for the sole purpose of remaining in possession of the demised premise without legal or factual justification. He further testified that he and his attorney have attempted to resolve this litigation in and out of court, to no avail. The testimony of the witness also revealed that the Respondent had also requested a TRO for compulsory arbitration based on an expired lease that expired three years ago; that relief was likewise denied. The witness further testified that the Respondent has used social media posting to undermine the Petitioner's school reputation and to cause humiliation to students in the Yeshiva. He stated that he had even offered to assist the Respondent in finding a new location for their school that was refused.
Since the witness was unable to remain for the entire afternoon session, the Court insisting on the effective use of the time that had already been set aside for this hearing, insisted both parties review and agree or disagree to the admission of the proposed documentary evidence by the Petitioner. After court conference, the parties consented and agreed to the introduction into evidence of the following documentary evidence:
• Petitioners Exhibit "1" -the affidavit from Mark R. Bernstein, Esq., entitled Debtors Motion to Dismiss Chapter 11 case pursuant to 11 USC 305(a)(1). This provision of the bankruptcy law allows the debtor to request dismissal of the bankruptcy case. What is significant for the purposes of the findings in this case are paragraphs 6-8, which state as follows: "The debtor commenced this Bankruptcy Case for the protection of the automatic stay against its landlord Yeshiva Chanoch Lenaar ("Yeshiva Chanoch"), so that it could remain in the premises in which it operated at 876-878 Eastern Parkway, Brooklyn, NY 11213 (the "School Premises"). Paragraph 7 states "Unfortunately, over the objection of the Debtor, Yeshiva Chanoch was granted relief it sought for the automatic stay to have no effect and to the extent possible be lifted by order dated August 30, 2018, and subsequently the Debtor had to vacate the "School Premises". Paragraph 8 states "As such, the Debtor's purpose of the bankruptcy was so that it could be reorganized at the School Premises, which it can no longer do."
• Petitioners Exhibit "2-A" - a copy of the Notice of Motion to Dismiss Chapter 11 pursuant to 11 USC 305(a)(1), which states the return date of January 10, 2018 before the Honorable Elizabeth S. STONG
• Petitioners Exhibit "2-B" - Order Dismissing Chapter 11 case.
• Petitioners Exhibit "3" - a copy of a Verified complaint by the Respondent against the Petitioner seeking to compel arbitration pursuant to the expired lease between the parties that requires all disputes between the parties be resolved in the Beis Din of Crown Heights.
• Petitioners Exhibit "4" - is a copy of the front page of the Order to Show Cause in Supreme Court to stay the execution of the warrant of eviction in which Justice Bernard Graham declined to sign stating, in relevant part, that "the Civil Court has instructed that no further stays should be issued".
• Petitioners Exhibit "5" - a copy of the order from the Appellate Division, Second Department that found that "Application by Plaintiff pursuant to CPLR § 5704 to execute the forgoing Order to Show Cause, which was presented to the Supreme Court, Kings County, which the Supreme Court, Kings County declined to execute. ORDERED that the application is denied. Signed-"For the Court, Hon. Betsy Barros, Associate Justice, Appellate Division, 2nd Dept."
• Petitioners Exhibit "6" - a copy of the Time/Task legal fees billed by the Petitioner's law firm from the beginning of their attorney-client relationship in or about August 24, 2017 to October 31, 2018 in regards the Respondent and the demised premises.
• Petitioners Exhibit "7" - Affirmation of Susan Mauro, Esq. that describes her education and employment background, the basis for her hourly rate and the number of hours that she contributed to the legal services in this proceeding. She spent 51.2 hours at $425 an hour.
• Petitioners Exhibit "8" - Affirmation of Christopher Gorman, Esq., that describes his educational and employment background, the basis for his hourly rate and the number of hours that he contributed in legal services in this proceeding. He spent 87.4 hours at the hourly rate of $475.00.
• Petitioners Exhibit "9" - Affirmation of Sarah Bouskila, Esq. that attests to her educational and employment background, the basis for her hourly rate of $250.00 and the number of hours that she contributed to legal services in this proceeding. She spent 115.8 hours at $250.00.
• Petitioners Exhibit "10" - a copy of the final bill for legal services for the Petitioner's account from November 16, 2018 to the conclusion of the hearing on December 21, 2018. In conformity with the agreement on the record, on January 18, 2019, the Court was provided with a copy of this final bill for legal services and the affidavit of service of the mailing attached is evidence that the Respondent was served with a copy of said correspondence and attached bills. Based on the court agreement, this document is admitted into evidence as Petitioner's Exhibit "10".
The case was adjourned to December 20, 2018 for a continued hearing. The Court again suggested to the Respondent to retain an attorney to assist them with their defense.
The Respondent did not retain counsel and appeared pro se again. On the adjourned date of December 20, 2018, the Petitioner called Daniel Takesky who testified that he has worked for the Petitioner law firm for approximately 17 years. He is the Assistant Billing Manager and is responsible for maintaining the operating accounts and escrow accounts for the law practice. He described the billing practices and procedures of the law office and testified that the bills were maintained in the ordinary course of the law firm, were billed contemporaneously with the legal services rendered on behalf of the clients and were generated daily and mailed monthly. He further stated that as of October 31, 2018, the legal fees billed to the Petitioner was $62,345.82. This sum included payments made by the Petitioner.
He also described the payment history on the Petitioner's account: $5500.00 was the initial retainer; $5000 was paid in December 2017; $5000.00 in the summer of 2018 and an additional $10,000 was paid in or about November 2018. The witness testified that the total amount paid by the Petitioner was $25,500.00.
The Respondent agent attempted to conduct cross examination. The Respondent elected to conduct this hearing without the benefit of an attorney contrary to the advice of this Court. Cross examination did not disclose any relevant facts.
On redirect, the Petitioner's witness testified that in April 2017, a credit was given to the account by a partner; any reduction in any legal fee bill is within the discretion of the equity partners and a credit was given to the Petitioner's account. In some instances, the partner will also authorize a payment plan on the bills. His records show that the Petitioner's account was billed a total of $98,257.61.
The Petitioner reserved the right to recall Mr. Lesches since his testimony was incomplete. He further testified that the moment the Petitioner commenced the holdover proceeding, the Respondent retaliated by commencing the Supreme Court action. He further testified that for one year, the Respondent did not pay rent and had agreed to voluntarily leave by the end of the year. They both agreed "to go their separate ways". However, the moment that the Petitioner commenced construction to enlarge the Petitioner's school, the battle began with the Respondent. He stated that the Respondent was informed that the Petitioner would commence construction in the building and the construction could not be completed if the Respondents remained in possession. The witness further testified that the Respondent owed nearly $180,000.00 in back rent and refused to pay the rent.
Although the Respondent attempted to elicit questions of the witness on cross examination, the questions were not relevant to the underlying proceeding.
The Petitioner rested on its case-in-chief and the Respondent's agent testified in defense of the Respondent.
Mrs. Luyud Marava Snyderman testified on behalf of the Respondent. She testified that the parties had a good relationship. The controversy between the parties did not begin until the Petitioner started demolition and other work at the premises.
The witness complained that during the winter there was no heat. She testified that the school suffered a loss in enrollment of students and a loss of income. The witness acknowledged that she signed the court stipulation; was "happy" with the terms of the agreement and agreed to vacate. The witness testified that she called Mr. Brinski and continually asked him if they could negotiate a price for purchasing the property. The witness further testified that her and her husband would've purchased the property but something "went very wrong". She claimed she had located another rental space but "at the 12th hour", she was told that the space was not available to them. She claims that losing the other space was the reason that she went to the Bankruptcy Court, the Supreme Court, and the Appellate Division.
She also testified that she knew that she did not have the legal right to remain in possession. She claimed that there was an oral representation made to her that "caused her to stay". She offered other testimony about the numerous times that she attempted to communicate with the owner. She claimed that she filed the bankruptcy petition because she was advised by her lawyer that it would give her 90 days; it would prolong her time to remain in possession.
She provided testimony that the Rabbi in her community had to give permission to sue in a court of law and the difficulty she had with trying to get her grievance to the Beis Din. Most of her testimony was not relevant to the issue of sanctions. Nonetheless, the most significant testimony from the witness was that she did not understand Bankruptcy Court but did acknowledge that the filing in the Bankruptcy Court was to prolong her eviction. She claims that it was when she sued for wrongful eviction, the Petitioner retaliated with the commencement of this holdover proceeding. The Respondent then rested.
In summation, the Petitioner asserts that the testimony of the Respondent's agent should be stricken as impermissible hearsay. The Petitioner states that there was no legal basis for any of the Respondent's legal action. Petitioner argues that when the Respondent sought to compel arbitration under a lease agreement that had expired it was acting in bad faith and disingenuous. Petitioner argues that the Respondent had agreed to vacate in 2016 and again in a court agreement in 2018. Instead of vacating the premises as agreed, the Respondent engaged in the long legal battle that cost the Petitioner nearly $100,000.00 in legal fees. The Respondent intended to and did cause unreasonable delay and prolonged this case to the substantial detriment of the Petitioner.
The Petitioner argues that the total due to the Petitioner is $98,257.61 and a judgment should be entered accordingly. The Petitioner also reiterated its request for leave to submit the additional legal fees that where not been billed from November 1, 2018 to the date of hearing.
Counsel also states for the record that all of the attorneys including the Respondents four attorneys have all made good faith attempts to resolve this case. It has been the Respondent's principal that has been extraordinarily recalcitrant and obstinate. She has refused to make any compromises and refused to vacate the subject premises. The Petitioner states that the Respondent has engaged in frivolous conduct within the meaning of the above statute and therefore, it is entitled to sanctions, legal fees and costs against the Respondent.
FINDING OF FACTS AND CONCLUSIONS OF LAW
Turning to the issue of sanctions, Section 130-1.1 of the Rules of the Chief Administrator of the Courts states, in pertinent part, as follows:
(a) The court, in its discretion, may award to any party in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part.
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both.
(c) For the purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
"In determining whether the conduct undertaken was frivolous, the Court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party "
It is well settled that conduct is frivolous and can be sanctioned under 22 NYCRR 130-1.1 if it is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" or it is "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" ( 22 NYCRR 130-1.1 [c][1][2]; see Stow v. Stow, 262 AD2d 550 (2nd Dept. 1999) ; Matter of Gordon v. Marrone, 202 AD2d 104 (2nd Dept. 1994) ; Tyree Bros. Envtl. Servs. v. Ferguson Propeller, 247 AD2d 376 (2nd Dept. 1998) ). "Making claims of colorable merit can constitute frivolous conduct within the meaning of 22 NYCRR 130-1.1 if ‘undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another’ " (Stow v. Stow , supra at 551, quoting 22 NYCRR 130-1.1 [c][2]; see also Matter of Gordon v. Marrone, supra ; Tyree Bros. Envtl. Servs. v. Ferguson Propeller , supra ).
As expressed in Park Health Center v. Country Wide Ins. Co., 2 Misc 3d 737, 740 (N.Y.City Civ.Ct.,2003) : "[i]n determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, the circumstances under which the conduct took place, including the time available for investigating the legal and factual basis for the conduct, and whether or not the conduct was continued when its lacks of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party." (Id.) [ 22 NYCRR 130-1.1(c) ].
While the various factors listed above are considered by the Courts in determining sanctionable conduct, "what remedy [to impose] is dictated by considerations of fairness and equity." ( Levy v. Carol Management Corp., 260 AD2d 27, 34, 698 N.Y.S.2d 226 [1st Dept. 1999] ). Moreover, "[s]anctions are retributive in that they punish past conduct. They are also goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the bar at large. The goals include preventing the waste of judicial resources and deterring vexatious litigation and dilatory or malicious litigation tactics. citation omitted " ( Levy, 260 AD2d at 34, 698 N.Y.S.2d 226 ). The measure of sanctions should be proportionate to the amount sought in the lawsuit, the culpability of the party's conduct and prejudice to the adversary. (See Vicom v. Silverwood, 188 AD2d 1057, 591 N.Y.S.2d 919 [4th Dept. 1992] ). Once there is a finding of frivolousness, sanction is mandatory ( Grasso v. Mathew, 164 AD2d 476, 564 N.Y.S.2d 576, lv. denied 78 NY2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443 )., especially in the wake of frivolous defamation litigation ( Mitchell v. Herald Co., 137 AD2d 213, 529 N.Y.S.2d 602, appeal dismissed 72 NY2d 952, 533 N.Y.S.2d 59, 529 N.E.2d 427 ).
As the Court reviews the facts here, the motive and intent of the Respondent is in plain view. It was irrefutable that the Respondent wanted to purchase the property from the Petitioner after sharing the space with the Petitioner pursuant to their lease dated August 30, 2014 (Petitioner's Exhibit "A" to the motion for sanctions). This lease is not the standard commercial real estate lease. It is written by the parties pro se and the terms and conditions clearly demonstrate that fact.
From the inception of the lease, the Petitioner properly informed the Respondent that the demised premises did not contain a valid certificate of occupancy, contained violations and the Respondent took the premises "as is". The lease provided that the Respondent had to maintain its own utilities including gas, electric, oil, maintenance and repairs. It also states the rental space in both 876 and 878 Eastern Parkway included the Shul, and many other adjoining rooms and bathrooms as described in the lease; the monthly rent and the requirement of hazard insurance. It also states that any dispute between the parties shall be resolved by the Beis Din of Crown Heights.
The Respondent did not obtain the family daycare license for months, did not obtain hazard insurance and incurred rent arrears in the sum of $27,000.00. After default by the Respondent of the lease, the parties appeared to have resolved their differences by mutual agreement dated October 12, 2015. The Respondent acknowledged the lease default: rent arrears in the sum of $27,000.00; a gas bill of $3500.00; the lack of fire and liability insurance; and improper renovations without the prior consent of the Petitioner. The Respondent acknowledged the debt and agreed to pay an unspecified sum each month toward the arrears; pay the utility companies; not engage in any more unauthorized alterations in the property (removed furniture, desks); provide fire and liability insurance; correct the alterations that the Respondent made to the heating system to restore heat; remove its property from 874 Eastern Parkway to afford a new purchaser the opportunity to close. If the Respondent pays and complies with the agreement, the Petitioner agreed to rent the premises for additional months. More important, the agreement states that if the Respondent fails to pay the rent, "then OYYL agrees to evacuate the premises without any hassle, and grievances, and without involving any outside intervention at all". "In the event G-d forbid the OYYL has to leave, the previous remaining debt remains in effect and must be paid promptly" (Out-of-court agreement dated October 12, 2015).
The Respondent did not comply with the terms of the out-of-court agreement and since the lease had expired by its natural terms, the Petitioner commenced this holdover proceeding to recover possession of the demised premises pursuant to RPAPL § 232-a. Respondent responded to this decision to commence this summary holdover proceeding with what the Court of Appeals called "a barrage of litigation" (Modell & Co. v. Minister, Elders & Deacon of Refm. Prot. Dutch Church , 68 NY2d 456, 460, 510 N.Y.S.2d 63, 502 N.E.2d 978 ), including a motion to dismiss that was not based on any legal theory. The Civil Court finding that there was proper service of process on the Respondent. The Court (Campanelli, J.) found that the affidavit of service contained an amendable non-substantive defect that did not prejudice the Respondent. The Respondent was supposed to answer the petition but instead defaulted. When the Petitioner moved for entry of a default judgment, the Respondent moved, inter alia , for a traverse hearing again without any legal grounds whatsoever in contravention of 22 NYCRR 130.1(c)(1). In fact, the Respondent had appealed the aforementioned decision immediately and while the appeal was pending, moved for the identical relief, a new traverse hearing based on the same claims of improper service of process.
The Respondent's motive and intent to delay the Petitioner's right to possession also can be found in the submission of the Order to Show Cause seeking a further stay of the execution of the warrant of eviction that was denied by the undersigned for the lack of merit. This Court determined that "the Respondent has exhausted their statutory stay of six months pursuant to RPAPL 753(1). The Respondent may not obtain any additional time under NY law, said stay expired on September 18, 2018 and acted in bad faith by using the judicial system (filing bankruptcy) with no legal basis to remain in possession to the substantial detriment of the Petitioner" at page 4. At that stage, the Respondent had also violated the first out-of-court agreement dated October 12, 2015 coupled with a violation of the March 18, 2018 in-court-agreement to vacate the demised premises is demonstrative of the unwillingness of the Respondent to comply with the rule of law and such conduct under these facts in this case constitutes frivolous conduct.
As equally compelling, as stated by the Petitioner, the Respondent also failed to pay use and occupancy since the inception of the tenancy, owed the Petitioner at least $27,000.00 in arrears before the parties executed the pro se agreement dated October 12, 2015 and continued to owe use and occupancy each month that the case was pending in the Commercial Part of the Civil Court from October 1, 2017 at the combined rent for the two spaces of $7500.00 for a total of $15,000.00 each month. There were no legally justifiable grounds for the Respondent to not comply with the agreements and no legal defenses proffered by the Respondent in any of the papers for noncompliance with its financial obligation while in occupancy of the demised premises.
Then, the commencement of the Supreme Court action by the Respondent for arbitration, after the commencement of the holdover proceeding, is yet another example of such instance of frivolous conduct and in the opinion of this Court, this provision of the lease is also unenforceable since the Respondent consented to a final judgment of possession with the issuance of a warrant of eviction that cancelled the landlord and tenant relationship and all tenancies thereunder including the written lease between the parties. (Citations omitted ; RPAPL § 749(3) ). The arbitration provision, like the lease, is unenforceable and is completely without merit in law and "cannot be supported by a reasonable argument for an extension, modification or reversal of existing law". 22 NYCRR 130.1 (c)(1).
Just as significant, the Respondent effectuates two appeals, one of the Civil Court order of J. Campanelli to the Appellate Term, which was later withdrawn, and the other was the attempt to stay the eviction at the Supreme Court, Kings County and subsequently, at Appellate Division, Second Dept. of the Supreme Court order (Graham, J) that declined to stay the execution based on this Court's order that denied the stay of the execution of the warrant of eviction on the grounds that it was beyond the statutory six month stay pursuant to RPAPL§ 753. The Appellate Division also denied the Respondent's application for a stay of the execution of the warrant of eviction. All of the three branches of the judiciary-Civil Court, Supreme Court, and the Appellate Division, Second Dept. denied the relief requested.
The Respondent even commenced a Civil Court action for alleged property and monetary damages for the alleged wrongful eviction of the Respondent by the Petitioner based on the alleged lack of essential services, namely, heat. As shown from the out-of-court agreement, the heat from the property was operational for over 35 years. It was the unauthorized alterations to the plumbing system by the Respondent that caused insufficient heat in the demised premises and by execution of the aforesaid out-of-court agreement, the Respondent acknowledged that the lack of heat was the Respondent's fault. In paragraph 8, the parties agreed, without the assistance of counsel, as follows: "As far as the heating problem is concerned, put EVERYTHING back the way you found it! Then with good plumbers advise and help (I may help as well) you will see that the heat can work properly, as it has for us for almost 35 years". It is the opinion of this Court that this action was commenced by the Respondent to intentionally injure the Petitioner for claims that were specious in retaliation against the Petitioner for exercising its rights to evict the Respondent based on the expiration of the lease and the Respondent's failure to comply with the parties agreement.
Now, the Respondent commenced the Chapter 11 Bankruptcy proceeding for the sole purpose of delaying and prolonging the eviction to the substantial prejudice of the Petitioner. The Bankruptcy Court determined that the Respondent's leasehold interest was not entitled to protection under the regulations because the lease had terminated prior to the commencement of the bankruptcy petition. In the decision and order dated August 30, 2018, Hon. Strong found that the automatic stay did not apply "because the Debtor's lease terminated by the expiration of the stated term of the lease before the commencement of this case" and granted the Landlord authorization to "pursue its rights under applicable law" to recover possession of the demised premises. Under the facts in this case, it is clear that the lease agreement between the Petitioner and the Respondent was not a major commercial leasehold interest that the Bankruptcy Court should protect since it had ended by its natural terms and could not be deemed an asset of the Debtor for protection while under its alleged reorganization. Instead, it was a small handwritten and then typed, ‘community lease’ written between the parties.
Furthermore, even the supporting affirmation of the Respondent's attorney acknowledges that "the debtor commenced this Bankruptcy case for protection of the automatic stay against landlord Yeshiva Chanoch Lenaar so that it could remain in the premises in which it operated at 876-878 Eastern Parkway " Since the Respondent's eviction occurred on October 1, 2018, apparently bankruptcy with the named business, which the Respondent clearly wanted to still protect, was now not advantageous to the Respondent so the petition was withdrawn/dismissed by the Respondent. After the Respondent defaulted, it is not difficult to conclude that the Respondent tried to remain in possession for her own purposes including to protect her small investment in the building and to defeat the rights of the Petitioner.
All of the legal maneuvers described above were undoubtedly intended to delay and to prolong the landlord's rights to recover possession of the subject premises. The history of the above litigation is a lengthy series of bad faith efforts by the Respondent to defeat the terms of the stipulation between the parties. The Respondent made it clear that she wanted to purchase this property and her culpable conduct and tactics were intended to prejudice the Petitioner for the refusal to sell the property to her. The parties were unable to agree on a purchase price and that should've been the end. But instead, the Respondent would not listen to reason, was ridiculously obstinate and would not under any circumstances make any concession in any of the cases. At multiple conferences, this Court made every effort to appeal to the sensibilities of the Respondent's agent. She was requested to consider all of the facts, her actions and the entire record, and to strongly consider resolution. Nonetheless, even the appeal of the undersigned to the agent to resolve her differences with the Petitioner, she remained unwavering and uncompromising.
The above litigation history shows that the Respondent's conduct during this litigation was evidently "undertaken primarily to delay or prolong the resolution of the litigation" (McKinney's 1990 New York Rules of Court [22 NYCRR] § 130—1.1[c][ii] ). In reaching this conclusion, this Court is obligated to considered, as part of "the circumstances under which the conduct took place" ( 22 NYCRR 130—1.1 [c] ), the extended history of this litigation and the numerous post judgment efforts by the Respondent made to avoid compliance with the agreement to vacate the premises. While some of the steps Respondent took were legitimate and at least had slight colorable merit, many others, most notably Respondent's two appeals and bankruptcy filing were so lacking in factual or legal merit that it demonstrates to the Court the Respondent's willful and malicious intention to use the Courts not as a means of resolving a genuine legal dispute but rather as a mechanism to delay Respondent's inevitable eviction. The motivation and acts here, spurred on by experienced counsel, at the staunch insistence of the Respondent at every turn, including threatening action(s) against its own counsel at the Grievance Committee if the Respondent did not "get her way", is blatant, ruthless, and demonstrates extreme and disingenuous motive to postpone the surrender of this commercial premises for as long as possible.
Having determined that the Respondent has engaged in frivolous conduct, the Court will turn to the imposition of costs in the form of reimbursement for ‘actual expenses and reasonable attorney fees’ incurred from frivolous conduct by the Respondent.
Since the inception of our modern legal system, the legal profession has regulated its own members. The legal profession establishes the policies, practices, procedures and regulations that are obligatory to obtain and maintain a license to practice law; and the acts and/or omissions that meet a well-defined threshold for the revocation of a license to practice law. To implement this system and as a necessary corollary, it has long been held that it is the ‘traditional authority’ of the courts to "supervise" the charging of legal fees under the court's inherent statutory power to regulate the practice of law ( Solow Management Corp. v. Tanger , 19 AD3d 225, 797 N.Y.S.2d 456 (1st Dept, 2005), Matter of First Nat'l Bank of East Islip v. Brower , 42 N.Y.S.2d 471, 474 (1977)).
The ultimate question of the reasonableness of attorney's fees, this Court, like others, recognizes that great deference must be given to parties to chart their own course in litigation as well as to stipulate to the amount of legal fees. The court is also cognizant of the fact that although deference is given to the parties to chart their own course in litigation, that deference is tailored only when there is an absence of conflict with the public interest. See WWW Associates, Inc. v. Frank Giancontiery, et al. , 77 NY2d 157, 567 N.Y.S.2d 440, 566 N.E.2d 639 (1990) ; Matter of Malloy , supra .
An adversarial hearing is mandated to determine the reasonableness of attorney's fees when questions of fact exist related to the reasonableness of the fee charged ( Kumble v. Windsor Plaza Corp. , 128 AD2d 425, 512 N.Y.S.2d 811 (1st Dept, 1987) appeal dismissed , 70 N.Y.S.2d 693. When a party legitimately challenges the amount claimed and the legal services performed, a court's award of counsel fees may only occur following an adversarial hearing where counsel fees must be proved and the opposing party asserts the right to cross-examination (Weinberg v. Weinberg , 95 AD2d 828, 467 N.Y.S.2d 20 (2d Dept, 1983); Badenhop v. Badenhop , 84 AD2d 773, 444 N.Y.S.2d 111 [2d Dept, 1981]. The converse is also true as Judge Acosta so aptly stated in Dupuis v. 424 East 72 Street Owners Corp. , 9 Misc 3d 1121(a) 2005WL2741961 (N.Y.Supp)): a court is not required to hold an adversarial hearing where no legitimate dispute exists regarding the attorney fees in question. Old Parts, Inc. v. G.E.B.M. Intern., Inc. , 170 AD2d 3892, 566 N.Y.S.2d 280 (1st Dept., 1981) (I.A.S. Court did not abuse its discretion in awarding attorney's fees without first conducting an evidentiary hearing where the amount of fees sought was not challenged.)
It goes without saying that in the instant matter, it is undisputed that the Respondent challenges the reasonableness of the legal fees incurred by the Petitioner. As provided above, legal fees in this case are provided for by statute on a finding of frivolous conduct, and the burden is on the attorney to establish the prevailing hourly rate for the work produced and reasonableness of the services rendered for such fee ( Gutierrez v. Direct Mktg. Credit Servs., Inc. , 267 AD2d 427 [2d Dept, 1999] [Internal citations omitted] ).
The Court's ultimate responsibility is whether the fees in question are reasonable and do the attorney's fees directly relate to the necessary work performed by counsel in litigating the underlying matter. See Matter of Malloy , 278 NY 429, 17 N.E.2d 108 (1938). It is well settled that attorneys are entitled to a reasonable fee for legal services rendered on behalf of their client, and in cases where the parties' obligations are clear, courts should enforce the contract terms in the interest of not undermining the "stability of contractual obligations." However, there is statutory and case authority that regulate even those contractual rights between the parties.
Section 1200.11 [a/k/a] DDR 2-106 [-] Disciplinary Rules [DR] of the Code of Professional Responsibility [CPR], 22 N.Y.C.R.R. § 1200.11 and Rule 1.5(a) — American Bar Association Model Rules of Professional Conduct [1989 E.D.] state that "(a) A lawyer shall not make an agreement for, charge, or collect an excessive fee or a legal fee or expense. A fee is excessive when, after a review of the facts, a reasonable lawyer would be left with a definite and firm conviction that a fee is excessive. The factors to be considered in determining whether a fee is excessive may include the following: (1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly; (2) the likelihood if apparent or made known to the client, that the acceptance of a particular employment would preclude other employment by the lawyer; (3) the fee customarily charged in the locality of similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (Rule 1.5 Fees and Divisions of Fees, Part 1200, Rules of Professional Conduct). The facts and circumstances of each individual case will dictate which of these factors are instrumental in determining a reasonable fee. Similarly, the factors used are not weighed equally, but are dependent on the facts and circumstances of the particular case.
Federal and State Court authority have consistently held that an attorney is entitled to an award of legal fees that compensates the attorney for the time reasonably expended in the lawsuit commonly referred to as the Lodestar method and have determined that the award for attorney's fees entails simply the multiplication of the number of hours reasonably expended by a reasonable hourly rate; a procedure that subsumes many of the factors described above. Specifically, our New York Courts have employed these factors to determine reasonable attorney fee awards in New York City. See McGrath, et al. v. Toy's R Us , 3 NY3d 421, 821 N.E.2d 510, 788 N.Y.S.2d 281 (2004).
As Justice Ruben, writing for the majority in Rahney v. Blun , 95 AD2d 297, 466 N.Y.S.2d 350 (2d Dept, 1983), stated that "there are many parameters that affect the value of legal services and which, therefore, must be considered by the court in evaluating a fee request". Although the Rahney Court specifically involved a recipient's appealing a termination of food stamps and claimed attorney's fees as the prevailing party, the case is often cited as the seminal case for the standard of the propriety of an award of legal fees and expenses.
In determining an award of attorney's fees, there must be a determination of the reasonable hourly rate for each category of service that has been charged. As a general rule, it is well-settled that the reasonable hourly rate should be based on the "customary fee charged for similar services by lawyers in the community with like experience and of comparable reputation to the attorney seeking the award". Experience, of course, includes not only the number of years in practice but also the nature of the practice engaged in by the specific attorney. Rahney v. Blun , supra .
Justice Howard Lane, in an admirable analysis in Francis v. Atlantic Infiniti, Ltd. , 34 Misc 3d 1221(A), 202WL398769 (NY Sup.), 2002 NY Slip Op. 50198U, defers to the case law in the Second Circuit, in particular, the Eastern District of New York in regards to the issue of reasonable attorney's fees. His analysis deals with the various fee shifting statutes unlike in the instant proceeding but is applicable nonetheless. This court will rely on the Circuit Court in the Eastern District and other decisions of the Appellate Division Second Department which adopts those same guidelines for the prevailing market rate for attorney's fees based on the number of years of experience. See also Goldman v. Rosen , 10 Misc 3d 1065(a), 814 N.Y.S.2d 561, 205WL3542398 ( N.Y.City Civ. Ct.), 2005 NY Slip Op. 521, 52 (U) in which Judge Liebowitz adopted the Lodesta r method of calculation of legal fees in a residential summary proceeding.
In determining the reasonable hourly rate, the court must consider the nature of the services rendered ( Newman v. Silver , 553 F. Supp. 485, 496 (S.D.NY 1982) ; Kaufman v. Diversified Industries, Inc. , 356 F. Supp 827 (S.D.NY 1973) ; Matter of Snell , 17 AD2d 490, 235 N.Y.S.2d 855, 853 (3d Dept, 1962). The Court is mandated to distinguish between legal work per se , investigation, clerical work, confirmation of facts and statistics, and other work which can often be accomplished by non-lawyers but may be performed by a lawyer because he or she is a solo practioner. Such value is not enhanced just because a lawyer does the work. Moreover, we must distinguish between the hours expended for in-court services and the hours expended for out-of-court services.
Furthermore, an attorney's experience or skills is a factor to be considered by the court in awarding reasonable attorney's fees. For instance, an experienced and skillful attorney might accomplish a particular task in a very short period of time whereas another inexperienced or lesser skilled attorney may accomplish the same task in a much longer period of time.
The Rahney Court, as this Court, must also determine if the fees were exorbitant or the time devoted in completing them is unnecessarily high. Based on such facts, the court may refuse further compensation or grant that compensation quite sparingly. Like the Rahney Court, once there is a determination to eliminate hours of service, it is imperative to identify those hours and articulate a legal reason for their elimination.
Just as important to the court's inherent and statutory power to regulate the practice of law, both federal and state courts approve of the inherent power of the judiciary to "employ" its own knowledge, experience and expertise in its determination of the time required to perform similar legal services and the reasonableness of the claimed fee. The knowledge, experience and expertise of this court in residential and commercial real estate is fitting and appropriate in this case. In making such an evaluation, the court itself is an expert and may make an independent judgment of the reasonable value of an attorney's services. Newman v. Silver , supra . (See also Schodnue v. Lek , 283 AD2d 200, 724 N.Y.S.2d 305 (App Div., 1st Dept, 2001) in which the court approved of the use of a Referee's own knowledge, experience and expertise to assist in determining the time required to perform legal services and to determine the reasonableness of the claimed fee. See also Matter of Rahney v. Blun , 95 AD2d 294, 300 ; Jordan v. Freeman , 40 AD2d 656, 657 ).
In assessing attorney's fees, a court should ascertain the nature and the extent of the services supplied by the attorney from a contemporaneous time sheet indicating the date, number of hours worked, an explanation of how the hours were spent (New York State Assn. for Retarded Children v. Carey , 711F.2d 1136; Cohen v. West Haven Bd. of Police Comrs. , 638 F.2d 496 ) and identifying the specific claim to which the hours pertained ( Hensley v. Eckerhart , 461 U.S. 50, 51 U.S.L.W. 4552, 4555 ).
Lastly, it is well-settled that the law office is entitled to recover reasonable, identifiable out-of-pocket disbursements which are ordinarily charged to clients (citations omitted ).
This Court has had the opportunity to examine the bills, the supporting attorney affirmations and the credible testimony of the Petitioner's Billing Manager of the practice and procedures of the firm in the generation of the bills, the contemporaneous time keeping records and the production of the monthly bills and payment records, and finds that the bills are accurate and reflect the proper amount of time for the nature of the services rendered except for one bill as provided below. Furthermore, the bills and billing practices of the law firm do not disclose excessive billing, padding, overcharge or other deceptive billing practices.
In general, attorneys are free to select a number of reasonable courses of action in prosecuting a client's case without exposing themselves to liability for malpractice or negligence. In this case, the Court finds that the Petitioner's law office selected a reasonable course of action in prosecuting this proceeding. The proper legal notice and petition were served and filed in the Court. The Petitioner was left no alternative than to defend against the Respondent's tactical legal maneuvers in four courts of competent jurisdiction at an astronomical cost and expense to the Petitioner which totally deprived the Petitioner of possession. The loss in rental income was substantial here and the Court will not overlook that fact. Notwithstanding claims to the contrary, Landlord and Tenant law is technical and complex, and requires a high level of skill. It is an area of expertise in the real estate law that often stumps even long-time seasoned lawyers. As a practicing lawyer in both the Housing and Commercial Parts of the Civil Court in this borough for nearly 27 years and as a presiding judge in both the Commercial and Residential Parts during my nearly 9 year tenure as a Civil Court and Acting Justice of the Supreme Court, I can wholeheartedly attest to the complexity of the litigation here (see Schodnue v. Lek , 283 AD2d 200, 724 N.Y.S.2d 305 (App Div., 1st Dept, 2001) ; Matter of Rahney v. Blun , 95 AD2d 294, 300 ; Jordan v. Freeman , 40 AD2d 656, 657 ). With that in mind, the Court finds that the supporting affirmations of each attorney, their respective backgrounds, level of skills, years of employment and experience are more than sufficient to establish their respective hourly rate for all of the legal services performed in this proceeding (see Petitioner's Exhibits "7", "8" and "9").
Despite the above findings, the Court finds that all legal services from August 24, 2017 through and including July 31, 2018 should be disallowed. The bills for that time were incurred by the Petitioner in the ordinary course of business. The commencement of the holdover summary proceeding to remove a month-to-month tenant, as in this case, based on a lease expiration, is authorized by statute, RPAPL § 232-A. Any costs and legal fees incurred for the commencement of the court case are ordinary business expenses and costs for owners of rental property, whether commercial or residential.
However, after the Respondent filed bankruptcy to stay the eviction from the demised premises after the agreed upon date to vacate on or before June 30, 2018 and July 20, 2018, and all of the legal services rendered after those dates are recoverable. Those legal services were required to recover possession by the Petitioner based on the Respondent's frivolous conduct which intentionally delayed and prolonged the summary proceeding to the detriment of the Petitioner and are recoverable in this proceeding. Accordingly, the Court finds the legal fees stated below were incurred by the Petitioner are proper legal fees except for one bill dated September 27, 2018 in the sum of $1975.00 based on the fact that it states "9/27/2018 MWI Kings County Democratic Committee Meeting 5.0 $395.00/hr$1,975.00", which apparently was billed in error. Therefore, the following legal fees are due and owing by the Respondent for the following time periods and amounts:
• From August 1, 2018 to August 31, 2018—$15,402.50;
• From September 4, 2018 through September 28, 2018-$19,611.50 minus $1,975.00 =$17,636.50;
• From October 1, 2018 to October 31, 2018-$9,640.00 plus $56.33 in expenses equals $9,696.33;
• From November 16, 2018 to December 21, 2018- $7,275.00
The total sum of the above legal fees is $49,954.00. The sum of $49,954.00 plus $56.33 (reasonable expenses) equals a grand total of $50,010.33.
Finally, this Court finds and fixes the amount for sanctions at $10,000.00. Like the Court of Appeals in Minister, Elders & Deacons, supra , this Court considers the identical factors in its determination of sanctions including the need to deter Respondent from engaging in further frivolous conduct in any litigation. This sum takes into consideration the fact that the Petitioner has been unfairly deprived of the use of its property for a protracted period and has suffered financial damages including the diversion of resources and time to defend against the Respondent's harsh and unjustified conduct in prolonging this proceeding. As significant, the Respondent has also unnecessarily diverted and depleted the time and talent of more than seven Judges from the City, State and Federal judiciary. This Court does not take this determination lightly; it is regretful that the Respondent remained unwilling to resolve this matter amicably and insisted on this unnecessary and wasteful hearing.
Accordingly, the Petitioner's motion for sanctions and costs is granted against the Respondent only and not its counsel as agreed on the record by the Petitioner's attorney, and the Clerk of the Court is directed to enter judgment for money in the sum of $60,010.33 which reflects reasonable legal fees and costs in the amount of $50,010.33 and $10,000.00 for sanctions.
The Petitioner shall serve a copy of this decision and order and judgment with notice of entry upon entry thereof by the Clerk of the Court and shall file proof of service thereof within 30 days.
The Court shall mail a courtesy copy of this decision and order to the parties.
This constitutes the decision and order of the Court.