Opinion
Index No. 0741-20
02-01-2021
LORRAINE ARMS APARTMENTS, LLC, Plaintiff, v. Cleve WILLIAMS, Defendant
Stephen P. Dewey, Esq., Attorney for Plaintiff, PO Box 2511, Briarcliff Manor, New York 10510 Earl M. Williams, Esq., Attorney for Defendant, 20 East Third Street, Mount Vernon, New York 10550
Stephen P. Dewey, Esq., Attorney for Plaintiff, PO Box 2511, Briarcliff Manor, New York 10510
Earl M. Williams, Esq., Attorney for Defendant, 20 East Third Street, Mount Vernon, New York 10550
Lyndon D. Williams, J.
Plaintiff commenced this plenary action seeking to recover $7,255.52. Plaintiff alleged in the complaint that defendant entered into a written lease agreement and subsequent lease renewals pursuant to which the defendant agreed to pay $1,170.13 per month plus late fees, etc. for premises located at 27 North Columbus Avenue, Mount Vernon, New York. Plaintiff further alleges that it did not gain possession of the premises until on or after April 2017 and that the defendant did not give proper and timely notice of the vacatur. The complaint alleges that the defendant owed $1,170.13 plus $50.00 in late fee for the months of December 2017, January 2017, February 2017, March 2017 and April 2017 in addition to a November 2017 balance of $1,154.87 for a total of $7,225.52. Subsequently, the complaint was amended to correct the breakdown of the alleged arrears owed by the defendant, including correcting the months of alleged arrears.
A non-jury trial was held in this matter on October 13, 2021 and October 20, 2021. Peter Poccia, the managing agent for the plaintiff, testified on behalf of the plaintiff. Mr. Poccia testified that he is responsible for the maintenance of the lease agreements for the subject premises as well as for the tenant ledgers and other documents relating the rental properties. Mr. Poccia testified that the lease documents and tenant ledgers are kept in the normal course of business. Mr. Poccia testified that rental payments are applied to the oldest rent due regardless of when it is received and that defendant stopped paying his rent at the beginning of 2017. As a result, plaintiff retained an attorney to commence a summary proceeding against the defendant for non-payment. Mr. Poccia further testified that pursuant to the underlying summary proceeding defendant was evicted from the premises on April 7, 2017 and plaintiff regained possession of the premises on that day. Mr. Poccia stated that the defendant did not provide any notice of his vacatur of the premises before plaintiff regained possession on April 7, 2017.
Plaintiff entered into evidence a copy of the lease, including its renewals and Rider, for the subject premises signed by defendant, which was marked as plaintiff's Exhibit "1". Pursuant to the lease agreement, including its renewals, defendant agreed to pay $1,170.13 per month. Paragraph 5 of the lease entitled "Security" states in pertinent part, "[i]f tenant does not pay rent or added rent on time, landlord may use the security to pay for rent or added rent then due. If tenant fails to timely perform any other term of this Lease, landlord may use the security for payment of money landlord may spend or damages landlord suffers because of tenant's failure." Paragraph 42 states "[i]n the event it becomes necessary for the landlord to institute any proceeding in connection with any violation of the terms of this lease, tenant will be responsible for any and all attorney's fees and court costs." Paragraph 13 of the Rider entitled "Legal Proceedings" states in pertinent part, "if tenant shall at any time be in violation of and/or default under the terms of this lease, and if landlord brings an action or summary proceeding against the tenant based upon such violation or default, then tenant will reimburse the landlord for the expense of attorney's fees (it being agreed that $320.00 is reasonable attorney's fees), costs and disbursements". Paragraph 43 of the lease states that in the event the rent is not paid by the 10th day of each month, tenant agrees to pay $25.00 and then an additional $25.00 after the 18th of the month. Said provision was edited by hand and initialed by the parties. Paragraph 15 of the Rider includes a similar late fee provision, which was also edited by hand albeit not initialed by the parties.
A copy of defendant's rent ledger from October 2016, which was the last time defendant had a zero balance, was marked into evidence as plaintiff's Exhibit "2". The ledger indicates an outstanding balance of $5,900.52 as of April 2017. The ledger shows that defendant made payments of $1,170.13 in the months of November 2016, December 2016 and January 2017. The ledger also indicates that for the months of October 2016 through March 2017 late charges of $25.00 were charged on the 11th and 18th of each month. The ledger further shows that attorneys fees in the amount of $320 were charged in December 2016 and again in February 2017 and that a lockout fee of $280.00 was charged in April 2017.
Plaintiff also entered into evidence a copy of the papers for the underlying summary proceeding, Index # 0539-17, which included a copy of the eviction notice dated April 7, 2017, pursuant to which defendant was evicted from the subject premises, as plaintiff's Exhibit "3". A review of the underlying summary proceeding indicates that on February 28, 2017 the defendant came to court and the matter was converted to a holdover proceeding. On that date, plaintiff obtained a judgment of possession only and reserved its right to commence a plenary action for rent arrears and other amounts due. The judgment of possession was stayed until March 14, 2017 to allow the defendant to vacate the premises. The plaintiff waited until March 31, 2017, however, to file for the judgment and warrant. The warrant was subsequently executed on April 7, 2017.
Plaintiff also entered into evidence a copy of an Amended Verified Complaint as plaintiff's Exhibit "4" and a copy of an invoice from plaintiff's counsel for its fees totaling $2,505.00 plus costs and disbursements with respect to the instant plenary action as plaintiff's Exhibit "5".
In a Decision and Order dated August 3, 2021 the Court granted plaintiff's motion to amend its complaint with respect to the amount sought by plaintiff. The Court notes that the Amended Verified Complaint submitted by the plaintiff as Exhibit "4" does not reflect the amendments which were granted in the Court's decision nor those in the proposed Amended Verified Complaint attached to the plaintiff's motion as Exhibit "8", which is also different than those granted in the body of the decision.
Defendant testified on his own behalf. Defendant testified that he vacated the apartment on February 28, 2017, the same day he appeared in court on the underlying summary proceeding. Defendant testified that on that day in court he met with an attorney for the plaintiff, paid the attorney some money and agreed to leave the premises. Defendant, however, did not provide any proof of payments allegedly made on that day. He further testified that he did not stipulate to allow the plaintiff to bring a plenary action. Defendant asserts that he paid all the outstanding rent and that he is making a claim to recoup his security deposit as well as his attorneys’ fees for his defense of the instant action.
Although the defendant indicated that he did not consent to the plaintiff's reservation to bring a plenary action for the rent arrears the Court's record is clear that defendant was advised that plaintiff had reserved its right and did not object.
As an initial matter, the Court finds that plaintiff was within its authority to assess the $25.00 late fees against defendant pursuant to the terms of the lease. It is clear from a review of the lease that the parties agreed that there would be an initial $25.00 late fee charge if the rent was not paid by the 10th of the month and a second $25.00 late fee charge if the rent had still not been paid by the 18th of the month.
Similarly, the Court further finds, and the parties agreed on the record, that the plaintiff is entitled to reasonable attorneys’ fees pursuant to the lease. Although the lease refers to $320.00 as being a reasonable amount, the Court is not bound by the specific attorney's fee amount set forth within the rental agreement. The Court is also not bound by the fee agreement between counsel and their client. See Queens Fresh Meadows, LLC v Newberry , 2 NY3d 310 (App Term, 2d, 11th & 13th Jud. Dists. 2014) ; 338 W. 46th St. Realty, LLC v Leonardi , 930 NYS2d 177 (App Term, 1st Dept 2011).
The lease further provides that if the tenant does not pay rent or added rent on time, the landlord may use the security to pay for rent or added rent then due. Accordingly, defendant's security deposit can be applied to rent arrears due and owing to the plaintiff.
With respect to the amounts owed to plaintiff by the defendant, a review of defendant's rent ledger indicates that the arrears sought by plaintiff includes monthly rent not received from defendant, numerous $25.00 late fee charges and two charges for attorney costs of $320, one in December 2016 and one in February 2017. Mr. Poccia testified that payments made by the defendant were applied to the oldest charges first. Essentially, the three payments made by defendant were applied to the October 2016, November 2016 and December 2016 rent arrears. As such, for the months of October 2016, November 2016 and December 2016 there was a balance of $50.00 in late fees per month for a total balance of $150.00 as of January 2017. Although the ledger also includes a charge of $320.00 for attorneys fees in December 2016, Mr. Poccia did not testify with any specificity as to why these attorneys fees were incurred and the lease only allows for attorneys fees to be charged in the event that plaintiff had to commence a proceeding in connection with defendant's violation of the lease. As such, plaintiff has not established a basis for these fees and it is not entitled to recoup the December 2016 attorneys fees of $320.00. For the months of January 2017, February 2017 and March 2017, the ledger indicates that the defendant owed rent of $1,170.13 plus $50.00 in late fees for a total balance of rent and late fees for these three months of $3,660.39. There is also a $320.00 charge for attorneys fees in February 2017 which coincides with the commencement of the underlying summary proceeding, Index # 0539-17. Mr. Poccia testified that after the defendant stopped paying rent at the beginning of 2017 plaintiff commenced a summary proceeding as a result. As such, the Court finds that a basis for the February 2017 charge for attorneys fees has been established such that plaintiff can recoup these fees.
With respect to the rent charge of $1,170.13 for April 2017, the Court finds that plaintiff is not entitled to the rent amount for the month of April 2017. On February 28, 2017 the plaintiff was granted a judgment of possession that was only stayed until March 14, 2017. Nevertheless, the plaintiff waited until the very last day of the month, March 31, 2017, which was also a Friday, to file for the judgment and warrant of eviction thereby unnecessarily delaying the execution of the warrant of eviction until after the 1st of April 2017. Defendant was present in court when the judgment of possession was granted and had been directed by the Court that he had only until March 14, 2017 to remain in the premises. Defendant testified that he was out of the premises before the March 14, 2017 date and the plaintiff did not provide any proof to the contrary. The fact that the defendant never notified plaintiff that he had vacated the premises before plaintiff retook possession on April 7, 2017 is inconsequential as the plaintiff had every right to obtain the warrant of eviction and retake possession of the premises when the stay expired on March 14, 2017, which was 17 days before plaintiff filed for the warrant of eviction. As such, plaintiff is not entitled to recover the rent amount for April 2017. The plaintiff is, however, entitled to the $280.00 lock out fee since the defendant did not return the key to the premises.
In summary, the Court's calculation of the total amount of arrears owed to plaintiff from defendant for the period of time from October 2016 through to March 2016 is $2,980.39. Said calculation of the arrears includes rent for January 2017 through March 2017 ($3,510.39), late fees for the months of October 2016 through March 2017 ($300.00) and the February 2017 attorneys fees of $320.00 for a total of $4,130.39 less the security deposit of $1,150.00 for the total amount of arrears of $2,980.39.
With respect to the attorneys’ fees for the instant plenary action, the factors to be considered by the Court for an award of attorneys’ fees, include: "time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved" ( Dillon v Dean , 256 AD2d 436 (2d Dept. 1998) citing Matter of Freeman, 34 NY2d 1, 9 (1974). Based upon the record before the Court, including the number of court appearances, the motion practice and the two day trial in this matter and in consideration of the above noted factors, the Court finds the fees presented by plaintiff's counsel to be reasonable and awards the petitioner attorneys’ fees in the amount of $2,505.00 plus costs and disbursements.
Judgment for the plaintiff in the amount of $2,980.39, with interest at 9% thereon from April 1, 2017, together with attorneys’ fees of $2,505.00 plus the costs and disbursements of this action is granted.
This constitutes the Court's Decision and Order.