Opinion
No. 96489/12.
05-11-2017
Wilhelm DRAPALA, Petitioner, v. Crecancio PASAN et al., Respondents.
Piazza, D'Addario & Frumin, Brooklyn, for Petitioner. Make The Road New York, Brooklyn, for Respondent Pasan. Claudia Luna, John & Jane Doe, Brooklyn, Respondents pro se.
Piazza, D'Addario & Frumin, Brooklyn, for Petitioner.
Make The Road New York, Brooklyn, for Respondent Pasan.
Claudia Luna, John & Jane Doe, Brooklyn, Respondents pro se.
GARY F. MARTON, J.
Petitioner predicated this "owner's own use" holdover proceeding on the plausible allegation that he wanted to recover possession of the premises for his about-to-be-married daughter and son-in-law, and that therefore, as allowed by statute, he need not renew respondents' rent-stabilized tenancy. By the time of the trial the wedding had taken place. However, respondents put petitioner's good faith in doubt by showing, among other things, that twice before petitioner had brought similar proceedings. In 2006 petitioner sued to recover possession of a different rent-stabilized apartment in the same building for the same daughter on the ground that she had recently graduated from college and needed her own apartment, and in 2001 petitioner sued to recover a different rent-stabilized apartment in the same building for the same daughter on the ground that she had recently graduated from high school and needed her own apartment .
As described at greater length in the decision dated March 23, 2015, as part of the settlement of the 2006 lawsuit the tenant vacated the apartment at issue therein. However, petitioner's daughter did not take possession of the apartment. The 2001 lawsuit was dismissed; when the apartment at issue therein became available eight or nine years later, petitioner's daughter did not move in.
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This court, by a decision dated March 23, 2015, granted respondents a judgment dismissing the proceeding, Drapala v. Pasan, 47 Misc.3d 1205(A) (Civ Ct, Kings Co, 2015). Petitioner noticed an appeal but did not perfect the same. Thereafter respondent moved for an award of attorney's fees and related relief. By a decision and order dated December 27, 2016 the court granted the motion and scheduled a hearing to fix the amount thereof. Now, after considering the testimony and the other evidence at the hearing on March 30, 2017, the court grants respondent Pasan a money judgment for $40,363.90.
The court fixed the award by multiplying a reasonable hourly rate by the number of hours reasonably expended on the litigation. Ezra Kautz ("Kautz"), now a supervising attorney at Make The Road New York but a staff attorney at the time of trial, showed through testimony and documents that he had spent a total of 98.7 hours on the case; he sought an hourly rate of $300.00. Especially in view of what was at stake for respondents in this proceeding—their affordable home in a gentrifying neighborhood—this court finds that the time spent was neither excessive nor the product of overzealousness, but instead was reasonable, warranted, and easily within the range of what was to be foreseen were respondents able to secure competent legal representation.
The court finds that the hourly rate sought is reasonable in view of counsel's experience, his education, the degree of complexity of the litigation, the prevailing rates in this area, and, of course, the result achieved. See, Diaz v. Audi of America, Inc., 57 A.D.3d 828, 830, 873 N.Y.S.2d 308 (2nd Dep't, 2008). Counsel's activity is described below.
| Date | Hours | Description |
|---|---|---|
| 08/03/2012 | 0.1 | Left voicemail |
| 08/03/2012 | 1.3 | Intake with client |
| 10/19/2012 | 0.4 | Met with client's cousin re: building background |
| 10/25/2012 | 1.0 | Met with client re: court date and discussed case |
| 11/26/2012 | 3.0 | Edited draft of motion to submit late answer & reviewed with client |
| 11/27/2012 | 2.0 | Finalizing and serving motion |
| 11/28/2012 | 1.0 | Court appearance |
| 12/17/2012 | 0.5 | Meeting with client to review case status and to discuss discovery |
| 1/7/2013 | 1.0 | Drafted and submitted discovery request; met with client |
| 1/17/2013 | 0.2 | Met with client re: case status and payment of use & occupancy |
| 2/07/2013 | 1.0 | Reviewed archived files in subbasement. Copied prior owner use cases |
| 4/09/2013 | 1.0 | Prepared opposition to petitioner's motion to restore |
| 4/10/2013 | 1.0 | Court appearance |
| 5/20/2013 | 0.4 | Telephone discussion with client concerning ceiling collapse and deposition |
| 5/21/2013 | 0.5 | Telephone discussion with opposing counsel who wanted to postpone deposition. Canceling reporter and interpreter |
| 7/08/2013 | 7.0 | Met with client prior to depositions, then conducted deposition of landlord and his daughter with "MD" supporting. |
| 9/30/2013 | 0.4 | Meeting with client to review case and resigning of intake form |
| 10/04/2013 | 0.2 | Called archives to extend hold on prior case files |
| 1/13/2014 | 0.4 | Renewed hold on archived case files through the end of April |
| 1/16/2014 | 0.2 | Telephone discussion with client re: no update and re: taking pictures from backyard |
| 2/05/2014 | 3.0 | Preparation and service of cross-motion for discovery sanctions re: missing EBTs from 2006 |
| 2/07/2014 | 0.2 | Filing cross-motion |
| 2/11/2014 | 2.0 | Court appearance |
| 2/26/2014 | 0.2 | Telephone discussion with client re: case status |
| 3/10/2014 | 0.5 | Court appearance |
| 4/21/2014 | 3.0 | Prepared notice to admit all deposition exhibits |
| 4/23/2014 | 1.0 | Visited client to take photos and to review testimony and case status |
| 4/24/2014 | 0.5 | Preparing and faxing response to opposing counsel's correspondence rejecting respondent's notice to admit |
| 4/25/2014 | 4.0 | Trial preparation |
| 4/27/2014 | 4.0 | Trial preparation |
| 4/28/2014 | 2.0 | Court appearance; opposing counsel requested adjournment |
| 6/17/2014 | 2.5 | Trial preparation |
| 6/18/2014 | 3.0 | Court appearance; case dismissed on default of petitioner |
| 7/16/2014 | 1.0 | Prepared amended answer and cross-motion to amend answer to include fees; meeting with client to review motion and for signature |
| 7/18/2014 | 1.0 | Finalized and served cross-motion to amend answer |
| 7/24/2014 | 2.0 | Court appearance |
| 9/23/2014 | 3.0 | Court appearance; sent out but sent back to resolution because there was no Polish interpreter |
| 11/02/2014 | 2.0 | Trial preparation |
| 11/03/2014 | 2.0 | Court appearance; adjourned—petitioner not ready |
| 11/24/2014 | 6.0 | Court appearance—commenced trial |
| 12/12/2014 | 3.0 | Court appearance—continued trial |
| 12/17/2014 | 3.0 | Court appearance—trial completed |
| 1/19/2015 | 3.0 | Drafted post-trial brief |
| 1/22/2015 | 3.0 | Drafted post-trial brief |
| 1/23/2015 | 2.0 | Drafting post-trial brief |
| 1/26/2015 | 0.5 | Finalized brief |
| 2/02/2015 | 0.5 | Served and filed brief in court |
| 3/26/2015 | 0.5 | Prepared and served notice of entry; discussion with client |
| 4/07/2015 | 0.2 | Filed notice of entry |
| 6/23/2015 | 3.0 | Drafted motion for attorney's fees |
| 6/24/2015 | 6.0 | Finalizing and serving motion for attorney's fees |
| 11/19/2016 | 2.0 | Preparing reply |
| 12/09/2016 | 0.5 | Court appearance—motion submitted |
| 3/26/2017 | 4.0 | Prepared for hearing |
| 3/30/2017 | 2.0 | Prepared for hearing |
| Total Hours | 98.7 |
The foregoing includes 17.5 hours for post-trial work. By this time Kautz had become a supervisor. Nonetheless, for this work, the court awards $300.00 per hour and declines to award a higher rate simply because Kautz had been promoted; his excellent work did not become more excellent. Accordingly, the total for Kautz' attorney's fees is 98.7 hours at $300.00 per hour, i.e., $29,610.00.
Luis Henriquez Carrero was Kautz' supervising attorney. The evidence showed that he logged 12 hours second-seating Kautz at trial, and respondents sought for him an hourly rate of $350.00. This rate is reasonable in view of his experience, his education, the degree of complexity of the litigation, his responsibilities in this matter, the result achieved, and the prevailing rates in this area.
| Date | Hours | Description |
|---|---|---|
| 11/24/2014 | 6 | Court appearance—trial commenced |
| 12/12/2014 | 3 | Court appearance—trial continued |
| 12/17/2014 | 3 | Court appearance—trial completed |
| Total Hours | 12 |
Accordingly, the total for Henriquez Carrero's work is 12 hours at $350.00 per hour, i.e., $4,200.00.
Counsel's records also had two entries for the services of an intern. "AS" is identified as an intern who, on November 26, 2012, billed four hours at an hourly rate of $100.00 for drafting a motion to submit a late answer. On that same date, Kautz billed three hours to edit the motion and review it with the client. The court declines to include the billing for "AS." There is no information provided as to the identity or credentials of "AS"; further, the three hours billed by Kautz for working on the same motion on the same day suffices for preparation of the motion. The court will, however, include .5 hour billed by the intern identified as "BL" on April 22,2016 at the hourly rate of $100.00, i.e., $50.00 for service of a notice to admit on opposing counsel.
Taking all the above into account, the court finds that petitioner is entitled to a judgment for attorney's fees in the sum of $33,860.00
In Solow Mgt. Corp. v. Tanger, 19 A.D.3d 225, 797 N.Y.S.2d 456 (1st Dep't, 2005) the court awarded to the prevailing party prejudgment interest at the statutory rate of 9% per annum on the attorney's fee award from the date of the proceeding's dismissal. Here, the court granted respondent a judgment after trial and dismissed the proceeding on March 23, 2015. Accordingly, the court awards respondent a judgment for interest from March 23, 2015 to date (i.e., 25½ months) at 9% per annum in the amount of $6,503.90.
Accordingly, the total judgment herein is $40,363.90.
In opposition, petitioner's counsel asserted that petitioner is a small landlord and asked the court to take that into account when fixing the fee award. However, petitioner did not offer any supporting evidence. Petitioner did not testify as to his financial wherewithal or otherwise, and petitioner did not offer copies of income tax returns, balance sheets, or statements of net worth. Accordingly, and assuming that the court might do so otherwise, the court declines to take this claimed factor into consideration.
Petitioner's counsel also requested that the court take into consideration respondents' counsel's employment by a legal service provider. Counsel argued that organizations such as these do not incur all of the expenses that private sector lawyers must include when calculating minimum hourly billing rates. Once again, petitioner did not offer evidence of the foregoing. There was no showing, for example, that legal service providers do not have to pay rent for the offices that they occupy, need not pay salaries to their lawyers and other employees, need not pay insurers to provide health coverage, and so on.
It is virtually certain that had respondents, unable to afford private legal representation, appeared pro se they would not have known to seek leave to take discovery, much less to have taken it, and they would not have uncovered the 2001 and 2006 lawsuits, to say nothing of the other considerations that the court took into account. The zealous defense provided by counsel was not only called for by the canons of the legal profession; it was essential.
The court will mail copies of this decision to the parties, and respondent shall serve forthwith on petitioner a copy of the judgment with notice of entry.