U.S. Battery, LLC v. UPS Power Mgmt.

Full title: USA BATTERY, LLC d/b/a BRIDGEVIEW POWER , Plaintiff v. UPS POWER…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

Date published: Aug 4, 2020

2020 N.Y. Slip Op. 32631 (N.Y. Sup. Ct. 2020)

Opinion

INDEX NO. 652141/2018

08-04-2020

USA BATTERY, LLC d/b/a BRIDGEVIEW POWER , Plaintiff v. UPS POWER MANAGEMENT, INC., SUPERIOR BATTERY, INC., ZIN ZHENG, Defendants.

For Plaintiff, Robert J. Nahoum, Esq. The Law Offices of Robert J. Nahoum, Esq. 48 Burd Street-Suite 300 New York, N.Y. 10960 For Defendants (Pro se-Default), UPS Power Management, Inc., Superior Battery, Inc. and Jin Zheng 313 W. 23rd Street Chicago, IL 60616

Lancelot B. Hewitt, Special Referee

NYSCEF DOC. NO. 40 Decision and Order ORDER OF THE SUPREME COURT, NEW YORK COUNTY: PART 81R

By decision and order of the Honorable Joel M. Cohen dated March 18, 2019, the issue of the amount of [reasonable] attorney's fees, costs and expenses to be awarded plaintiff, was referred for assignment to a Special Referee to hear and determine.¹

1 The Court granted the motion made by plaintiff for leave to enter a default judgment against defendants, pursuant to CPLR 3215, on the issue of liability, and referred the instant matter.

The instant matter was assigned to the undersigned Special Referee on September 10, 2019, at which time only counsel for plaintiff appeared. Appearances were as follows: For Plaintiff,
Robert J. Nahoum, Esq.
The Law Offices of
Robert J. Nahoum, Esq.
48 Burd Street-Suite 300
New York, N.Y. 10960 For Defendants (Pro se-Default),
UPS Power Management, Inc.,
Superior Battery, Inc. and
Jin Zheng
313 W. 23^rd Street
Chicago, IL 60616 Findings of Fact² (1) By retainer agreement dated March 7, 2018, plaintiff retained The Law Offices of Robert J. Nahoum, Esq. ("counsel") to represent it in the instant action. (Ftn#2-It must be noted that such retainer agreement includes only the signature of "Robert J. Nahoum, Esq."). Plaintiff and counsel agreed in the retainer agreement that counsel would be initially engaged to provide legal services in connection with an "accounts payable" dispute between plaintiff and defendants UPS POWER MANAGEMENT, INC. and SUPERIOR BATTERY, INC., and that the scope of such engagement "may enlarge." Plaintiff also agreed to pay an "initial retainer" in the amount of $3,000.00. (2) It was agreed that Robert J. Nahoum, Esq ("Nahoum") would charge plaintiff at the rate of $400.00 per hour for the worked he performed in the instant action and that the hourly rates for attorneys and other professionals "likely" to be involved in the case billed within the range of $100.00 to $350.00 per hour. It was also agreed that plaintiff would pay for reasonable costs and expenses incurred in the performance of services. (3) Counsel spent a total of 10.40 hours performing legal services in the instant matter during the period March 15, 2018 through September 5, 2019, and incurred expenses and costs in the total amount of $570.00. (4) Nahoum is a 2001 graduate of Albany Law School. From April 2002 through December 2003, Nahoum served as an associate in-house litigation counsel to a company named Econnergy Energy Company, Inc. located in Spring Valley, New York. The focus of Nahoum's practice was consumer and commercial debt collection. (5) During the period December 2003 through December 2005, Nahoum was employed as an associate attorney- at-law with the law firm of Duane Morris, LLP located in New York City. The focus of Nahoum's practice was commercial litigation and bankruptcy. (6) Nahoum was employed as an associate attorney at the law firm of Arent Fox, LLP in New York during the period December 2005 through March 2009, focusing on commercial litigation and bankruptcy. Commencing in March 2009, Nahoum has maintained a solo practice focused on debtor/creditor law, commercial and consumer litigation, as well as general litigation. (7) Nahoum is a member of the New York, New Jersey and Connecticut bars.

2 Plaintiff did not offer any oral testimony with respect to the referenced issue but rather submitted documentary evidence in the form of an affirmation from counsel, together with supporting documents, pursuant to 22 NYCRR 202.46

Conclusions of Law

(1) The Special Referee's query is limited by the scope of the instant matter (see, Marshall v. Pappas, 143 AD2d 979 [2^nd Dept. 1988]-[The referee is controlled by the Order of Reference, and must comply with the direction therein]; Volk v. Volk, 254 AD2d 274 [2^nd Dept. 1998]). (2) In the determination of the referenced issue, the referee is to consider the character, demeanor and interest of the witnesses. As the trier of fact, the referee determines whether or not the testimony is colored intentionally or unintentionally by those factors (see, Lauria v. Lauria, 187 AD2d 888, 889 [3^rd Dept. 1992]). (3) Although the witness may have an interest in the outcome of the litigation (see, Coleman v. New York Tr. Auth., 41 AD2d 812, affirmed 37 NY2d 137 [1975), which is highly material in assessing the credibility of the witness (see, 65 NY Jur., Witnesses, 71, pp. 233-234), it does not mean that the witness has not told the truth (see, Calandra v. Norwood, 83 AD2d 650, 651 [2^nd Dept. 1981]; Dobro v. Village of Sloane, 48 AD2d 243, 247-248, appeal dismissed 37 NY2d 804 [1975]-[lt is widely accepted that whether a witness has a personal interest in the outcome of the litigation is a factor that must be considered in order to adequately perform the unique duty of weighing the evidence and assessing the credulity of witnesses]). (4) As the trier of fact, the referee has the liberty to disbelieve the testimony of a witness even though it is not otherwise impeached or contradicted (see, Dominquez v. Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2qd 528, 534 [1979]-[issues of credibility are for the trier of fact]). (5) The parties must establish by a fair preponderance of the credible evidence that the claims they are making are true (see, Spangenberg v. Chaloupka, 229 AD2d 482, 483 [3^rd Dept. 1996]). The evidence must be relevant and have the tendency to make the existence of any fact more probable than it would be without the evidence (see, Epstein & Wessenberger, New York Evidence 1996/1997 Courtroom Manual 1996, Chap. 3-1, at 35; People v. Lewis, 69 NY2d 321, 325 [1987]-[evidence is relevant if it has any tendency in reason to prove any material fact]). Evidence which is "evenly balanced" is insufficient to overcome the burden of any presumption (see, Rinaldi & Sons, Inc. v. Wells Fargo Alarm Services, Inc., 39 NY2d 191, 196 [1976]). ( 6 ) An award of attorney's fees must be supported by proof of billing and services (see, Cwiklinski v. Cwiklinski, 115 AD2d 951 [4^th Dept. 1985]). In determining the appropriate attorney's fees, certain factors are to be considered by the court, such as time and labor required; the difficultly of the questions presented; the skill required to perform services, including the lawyer's experience, ability and reputation; the amount involved; and the benefit resulting to the client from the services (see, Matter of Freeman, 34 NY2d 1, 9 [1974]; Morgan & Finnegan v. Howe Chemical Co., 210 AD2d 62 [1^st Dept. 1994]). (.7 ) A lawyer may of course perform certain "non-legal" work, such as clerical work, or filing of papers, but such may command a lesser rate. In other words, the value of the work is not enhanced just because a lawyer performs it (see, In the Matter of Rahmey v. Blum, 95 AD2d 294, 301 [2^nd Dept. 1983]). (. 8) The court may form an independent judgment from the facts and evidence before it, as to the nature and extent of the services rendered, make an appraisal of such services, and determine the reasonable value therefore (see, Bankers Federal Sav. FSB v. Off West Broadway Developers, 224 AD2d 376, 378 [1^st Dept. 1996]).

Analysis

(1 ) I have considered all of the relevant evidence, and I find that plaintiff has established, by a fair preponderance of the evidence, that it is entitled to an award in reasonable attorney's fees, costs and expenses in the total sum of $4,730.00.³ (see, Spangenberg v. Chaloupka, supra; Cwiklinski v. Cwiklinski, supre; Matter of Freeman, supra; Morgan & Finnegan v. Howe Chemical Co., supra)

3 The calculation of 10.40 hrs. multiplied by $400.00, equaling the amount of $4,160.00, plus the amount of $570.00

Conclusion

Upon consideration of the evidence presented, I find that USA BATTERY, LLC d/b/a BRIDGEVIEW POWER is entitled to an award in attorney's fees, costs and expenses in the total amount of $4,730.00

ORDERED that the clerk of the court Is directed to enter a judgment in favor of USA BATTERY, LLC d/b/a BRIDGEVIEW POWER and against UPS POWER MANAGEMENT, INC., SUPERIOR BATTERY, INC. and JIN ZHENG, jointly and severally, in the amount of $4,730.00;

ORDERED that the interest on the judgment shall be calculated at the statutory rate, together with costs and disbursements, to be taxed by the Clerk upon submission on an appropriate bill of costs.

The foregoing constitutes the decision and order of the court. Date: August 4, 2020.

/s/_________

Lancelot B. Hewitt,

Special Referee Enter:

/s/_________

Clerk of the County