Opinion
2006-645 K C.
Decided December 4, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered December 22, 2005. The order, following a hearing, granted so much of a motion by plaintiff as sought attorney's fees and disbursements and awarded plaintiff attorney's fees in the amount of $16,560 and $35 in disbursements.
Order reversed without costs and matter remanded to the court below for a determination de novo of the amount of attorney's fees and disbursements to be awarded plaintiff, in accordance with the decision herein.
PRESENT: GOLIA, J.P., RIOS and STEINHARDT, JJ.
In this action by a tenant against the owner of his building to recover for rent overcharge based on a claim that his rents had been increased in violation of a 1993 order of the New York State Division of Housing and Community Renewal (DHCR), the Civil Court granted plaintiff summary judgment on the overcharge claim, and, after a hearing, found that the overcharge was willful. The court held that plaintiff was therefore entitled to treble damages on the overcharge pursuant to Rent Stabilization Code (9 NYCRR) (RSC) § 2526.1 (a) (1) and § 2526.1 (a) (2) (i), and a judgment was entered awarding plaintiff the total sum of $23,844.01.
On appeal, this court, by order dated February 5, 2007, reversed the judgment, ruling that although the Civil Court properly found that the overcharge was willful, it improperly based its award on the lease in effect prior to the June 1, 1993 effective date of the DCHR order, in violation of CPLR 213-a, which explicitly precludes examination of the rental history of the housing accommodation prior to the four-year period immediately preceding the commencement of the action ( Jenkins v Fieldbridge Assoc. LLC ,15 Misc 3d 6 [App Term, 2d 11th Jud Dists 2007]; see also Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516 [a] [2]; RSC § 2526.1 [a] [2] [ii]). Therefore, this court held, the overcharge should have been calculated based on the $449.68 rent in effect four years before this action was commenced in 2002, instead of the $375.44 rent in effect for tenant's lease prior to the June 1, 1993 effective date of the DHCR order, and remanded the matter for a recalculation of the amount of the base overcharge, as well as the treble damages to be awarded thereon.
While that appeal was still pending, the Civil Court held a hearing on attorney's fees and disbursements, which plaintiff had sought pursuant to RSC § 2526.1 (d). After the hearing, the court awarded plaintiff the total sum of $16,595 as the reasonable attorney's fees and disbursements incurred in this matter. We reverse.
The reasonableness of an award of attorney's fees is determined by a number of factors, including the nature, extent and necessity of the legal services, and the results obtained ( see e.g. Miller Realty Assoc. v Amendola ,51 AD3d 987; Granada Condominium I v Morris, 225 AD2d 520; Silver Towers Owners Corp. v Arken, 2003 NY Slip Op 50682[U] [App Term, 2d 11th Jud Dists 2003]). When the attorney's fees were determined in this case, the court based its determination on a judgment of $23,844.01, which was predicated on a base rent of $375.44. That judgment has since been reversed, and, on remand, the overcharge and treble damages are to be recalculated based on a rent of $449.68. As the results obtained in this case have materially changed since the attorney's fees were awarded, the matter should be remanded for a new consideration of what a reasonable award would be in light of the final results achieved ( see e.g. Solow v Wellner, 154 Misc 2d 737 [App Term, 1st Dept 1992], mod on other grounds 205 AD2d 339, affd 86 NY2d 582).
Accordingly, the order is reversed and the matter remanded to the court below for a determination de novo of the amount of attorney's fees and disbursements to be awarded plaintiff, in accordance with this decision.
Rios and Steinhardt, JJ., concur.
Golia, J.P., concurs in a separate memorandum.
While I agree with views expressed in the majority opinion, I would also note the following:
When seeking fees, attorneys must be vigilant in assuring that their records provide an accurate representation of the work actually performed.
The charging of fees by attorneys in connection with time expended on behalf of their clients should also be well documented. This is especially true when the time spent was recorded contemporaneously with the event to which it corresponds. This likewise applies to expenditures and other costs. Retainer agreements and statements must clearly reflect the understanding between attorneys and their clients.
As attorneys they can do no less.
A trial court should be ever mindful of unsubstantiated, unnecessary, suspicious, and excessive charges submitted in support of a claim for attorney's fees, especially where, as here, there is no retainer agreement.
As judges we should do no less.
Indeed, although the fee arrangement was purportedly set at $300 per hour, the record reflects that plaintiff's attorney had told her client, Mr. Jenkins, that she would reduce her fee in the event she did not succeed in winning this action. In other words, if Mr. Jenkins were ultimately responsible to pay his attorney, they would set a "new" fee arrangement at that time. Certainly, it would not be $300 per hour.
I submit, that under the facts herein, there was no fee agreement between Mr. Jenkins and his attorney. It was therefore inappropriate for plaintiff's attorney to assert that there was such an agreement. This Court cannot allow the mere claim of a questionable retainer agreement which is subject to future change, obliterate its obligation to ultimately determine the reasonableness of the attorney's fees at issue.