Opinion
12887 Index Nos. 105985/10, 157465/16 Case No. 2019-04904
01-19-2021
Koya ABE, Plaintiff–Appellant, v. NEW YORK UNIVERSITY et al., Defendants–Respondents. Koya Abe, Plaintiff–Appellant, v. New York University et al., Defendants–Respondents.
Jennifer L. Unruh, Astoria, for appellant. DLA Piper LLP (US), New York (Evan D. Parness of counsel), for respondents.
Jennifer L. Unruh, Astoria, for appellant.
DLA Piper LLP (US), New York (Evan D. Parness of counsel), for respondents.
Webber, J.P., Mazzarelli, Gonza´lez, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered July 29, 2019, which denied plaintiff's motion to reject, and granted defendants' cross motion to confirm, the report of a Special Referee recommending, after a hearing in connection with the award of sanctions against plaintiff and his attorney, that defendants be awarded reasonable attorneys' fees in the amount of $126,435, unanimously affirmed, without costs.
The Special Referee's report was properly confirmed. Defendants submitted invoices of their attorneys showing the date, amount of time, and nature of tasks performed, the persons performing them, and the rates charged, which constitute business records created "at the time ... or within a reasonable time thereafter" ( CPLR 4518[a] ; see Zacharius v. Kensington Publ. Corp., 167 A.D.3d 452, 452–453, 90 N.Y.S.3d 25 [1st Dept. 2018] ). The Special Referee clearly defined the issues and "was in the best position to weigh the evidence and make credibility determinations," and we perceive no basis to disturb them ( Winopa Intl., Ltd. v. Woori Am. Bank, 59 A.D.3d 203, 204, 873 N.Y.S.2d 37 [1st Dept. 2009] [internal quotation marks omitted]).
Contrary to plaintiff's argument, he is not entitled to a credit against his counsel fee obligation in the amount of the payment made by the insurer, since the collateral source rule is inapplicable in this context (see Isaacs v. Jefferson Tenants Corp., 270 A.D.2d 95, 96, 704 N.Y.S.2d 71 [1st Dept. 2000] ; Board of Mgrs. of Foundry at Washington Park Condominium v. Foundry Dev. Co., Inc., 142 A.D.3d 1124, 38 N.Y.S.3d 60 [2d Dept. 2016] ). Nor did the Special Referee fail to consider other factors relevant to the reasonableness of the fees (see Matter of Freeman, 34 N.Y.2d 1, 9, 355 N.Y.S.2d 336, 311 N.E.2d 480 [1974] ).
Plaintiff waived the issue of noncompliance with CPLR 4320(b) by not raising it in his motion to reject the report ( Matter of Galiber v. Previte, 40 N.Y.2d 822, 824, 387 N.Y.S.2d 561, 355 N.E.2d 790 [1976] ; NexBank, SSB v. Soffer, 142 A.D.3d 911, 912, 37 N.Y.S.3d 879 [1st Dept. 2016] ).
Plaintiff cannot challenge the quashing of subpoenas before the hearing, having failed to appeal the relevant order ( CPLR 5501, 5513[a] ). Furthermore, his challenge to the finding of frivolous conduct and his claim that he acted in good faith are foreclosed, as this Court previously affirmed the order granting sanctions ( 169 A.D.3d 445, 449–450, 94 N.Y.S.3d 17 [1st Dept. 2019], lv dismissed 34 N.Y.3d 1089, 116 N.Y.S.3d 188, 139 N.E.3d 846 [2020] ; see Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept. 2012] ).
We have considered plaintiff's remaining contentions and find them unavailing.