Opinion
Index No. 652720/2022
07-10-2023
An Chaun Wang, Plaintiff, v. JMA Property Services, LLC, MELVIN JOHNSON, and CATHY JOHNSON, Defendants.
Lee & Lum, LLP, New York, NY (Robert J. Lum of counsel), for plaintiff. No appearance for defendants.
Unpublished Opinion
Lee & Lum, LLP, New York, NY (Robert J. Lum of counsel), for plaintiff.
No appearance for defendants.
Gerald Lebovits, J.
Plaintiff, An Chaun Wang, moves without opposition for default judgment under CPLR 3215 against defendants, JMA Property Services, LLC, Melvin Johnson, and Cathy Johnson. Plaintiff's motion is denied, and the action is dismissed, as against defendants Melvin Johnson and Cathy Johnson (individual defendants). With respect to defendant JMA Property Services, plaintiff's motion is granted in part and denied in part.
DISCUSSION
I. The Branches of Plaintiff's Motion for Default Judgment Against the Individual Defendants
Plaintiff seeks default judgment against the individual defendants. But plaintiff did not properly serve those defendants. Plaintiff's claims against those defendants must therefore be dismissed.
The individual defendants were served by the nail-and-mail method under CPLR 308 (4). (See NYSCEF Nos. 4, 5 [affidavits of service].) This method requires that a plaintiff have first attempted with due diligence to serve defendants by personal delivery or delivery to a person of suitable age and discretion. Plaintiff has not established due diligence here. According to the affidavits of service (see id.), plaintiff's process server resorted to nail-and-mail after only two unsuccessful attempts, both made on weekdays "during hours when it reasonably could have been expected that the defendant was either working or in transit to and from work." (O'Connell v Post, 27 A.D.3d 630, 631 [2d Dept 2006].) That is not sufficient. (See id.)
Plaintiff's attorney's affirmation states that following counsel's "extensive investigations into Defendants' whereabouts in Florida," plaintiff's "process serve[r] made seven attempts at the individual defendants' last known residence in Oldsmar, Florida." (NYSCEF No. 7 at ¶ 46.) But the attorney affirmation provides no further details about either counsel's investigations or the referenced service attempts. The attempts are not reflected in the process server's affidavit. And affixing process to the door of a defendant's last-known residence-as distinct from the defendant's actual "dwelling place or usual place of abode"-would not be valid service in any event. (Feinstein v Bergner, 48 N.Y.2d 234, 239 [1979].)
Additionally, nail-and-mail service is valid only if process is both affixed to the service address and mailed. (See CPLR 308 [4].) Plaintiff's affidavits of service on the individual defendants do not state that service was mailed to them. (See NYSCEF Nos. 4, 5.)
Absent valid service, this court lacks personal jurisdiction over the individual defendants. The action is therefore dismissed as against them.
II. The Branch of Plaintiff's Motion for Default Judgment Against Defendant JMA Property
With respect to defendant JMA Property, plaintiff's affidavit of service reflects that this defendant was validly served by delivery to the Secretary of State (NYSCEF No. 2); and JMA Property has not appeared. And plaintiff has provided proof of the facts supporting its claim, as CPLR 3215 (f) requires-although only with most of the total claimed in damages, rather than the full amount.
A. Plaintiff's Breach-of-Contract Claim
A party moving for default judgment may provide the necessary proof through a party affidavit or through a verified complaint that serves as the equivalent of an affidavit. (See CPLR 3215 [f].) Here, plaintiff's complaint was verified only by counsel (see NYSCEF No. 1 at 14), which is not sufficient to permit the complaint's use to support plaintiff's default-judgment motion. (See Beltre v. Babu, 32 A.D.3d 722, 723 [1st Dept 2006].) As a result, the default-judgment motion rests solely on the facts set out in plaintiff's own affidavit. (See NYSCEF No. 15.) That affidavit seeks an award of damages based only on plaintiff's first cause of action, for breach of contract.
A different rule might apply if counsel's verification were made on personal knowledge of the facts. (See Beltre, 32 A.D.3d at 723-724.) But plaintiff's counsel represents in his verification that the basis for his knowledge of the truth of the complaint's allegations is instead "discussions with the Plaintiff, as well as a review of the file maintained by my office." (NYSCEF No. 1 at 14.)
Plaintiff's attorney's affirmation makes arguments for other increments of damages based on other causes of action asserted in the complaint. (See NYSCEF No. 7 at 5-7.) But these other damages claims are not addressed in plaintiff's own affidavit-the only submission properly before the court on this motion.
On the first cause of action, plaintiff seeks $97,835.77 in damages, representing the total amount, as of February 28, 2022, of funds that defendant JMA Property collected on plaintiff's behalf from tenants and was then contractually required to disburse to plaintiff. (See NYSCEF No. 15 at ¶ 10.) But the documentation submitted to support this claim establishes only that plaintiff is entitled to the smaller sum of $93,135.18. (NYSCEF No. 20.)
B. Plaintiff's Attorney-Fee Claim
Plaintiff also seeks an award of attorney fees. (NYSCEF No. 15 at ¶ 11.) Plaintiff is entitled under the underlying contract to her reasonable attorney fees. (See NYSCEF No. 16 at 6 § IX [B].) But plaintiff is not entitled to the fees sought on the motion.
Plaintiff's retainer agreement provided that her counsel would receive a one-third contingency fee plus a $5,000 retainer. (NYSCEF No. 14 at 1-2.) Plaintiff's counsel argues, therefore, that plaintiff is entitled to recover that sum from JMA Property as plaintiff's reasonable attorney fees. This court disagrees.
That a retainer agreement provides for counsel to receive a fee award that is a fixed percentage of the total recovery does not itself establish that the amount of that award is reasonable. Thus, in Prince v Schacher (125 A.D.3d 626, 627-628 [2d Dept 2015]), the Appellate Division, Second Department, denied a plaintiff's motion for summary judgment on an attorney-fee claim that was based on express contractual language entitling plaintiff to "counsel fees incurred to enforce the note in an amount equal to 20% of the principal and interest due on the note." The Court explained that a court is "'not bound by the fixed percentage set forth in the [note], but [has] the inherent authority to determine reasonable attorneys' fees."' (Id. at 628, quoting Orix Credit Alliance v Grace Indus.,, 261 A.D.2d 521, 521-522 [2d Dept 1999] [alterations in original]; cf. Albunio v City of New York, 23 N.Y.3d 65, 73-76 [2014] [distinguishing, in the context of a fee dispute between attorney and client, between reasonable attorney fees awarded to counsel under a statutory fee-shifting provision and contingency fees provided for in the retainer agreement]. )
Albunio held that as between lawyer and client, absent contrary provision in the retainer agreement, the attorney is entitled to collect from the client the amount in reasonable fees awarded under a fee-shifting provision, or the amount to which the attorney would be entitled in contingency, whichever is greater. (See 23 N.Y.3d at 68, 75-76.)
Here, one-third of plaintiff's total recovery, plus $5,000, would be approximately $36,000. Plaintiff has not shown (nor attempted to show) that $36,000 is a reasonable fee within the meaning of the underlying contract between the parties, considered in terms of (i) the total hours reasonably billed by plaintiff's counsel in this action, and (ii) the customary rates "charged for similar services by lawyers in the community with like experience and of comparable reputation to those by whom the prevailing party was represented." (Gamache v Steinhaus, 7 A.D.3d 525, 527 [2d Dept 2004].)
Accordingly, it is
ORDERED that the branches of plaintiff's motion seeking default judgment against defendants Melvin Johnson and Cathy Johnson are denied, and the action is dismissed against those defendants for lack of personal jurisdiction; and it is further
ORDERED that the branch of plaintiff's motion seeking default judgment against defendant JMA Property Services, LLC, is granted in part and denied in part, and plaintiff is awarded a judgment against JMA Property for $93,135.18, with interest on that sum at the statutory rate running from February 28, 2022, plus costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the branch of plaintiff's motion seeking an award of attorney fees is denied without prejudice; and it is further
ORDERED that plaintiff may enter a supplemental judgment for its reasonable attorney fees, with the amount of those fees to be determined by a motion made on notice, supported by appropriate documentation; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants by certified mail, return receipt requested, directed to their respective last-known addresses; and on the office of the County Clerk, which shall enter judgment accordingly.