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Alamgir v. Poveda -- On attorney fees

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Alamgir v. Poveda -- On attorney fees

Postby TenantNet » Sun Jan 31, 2010 9:09 am

The following decision is a good discussion of how attorney fees are determined in housing cases. Many leases contain an "attorney fees" clause, and in many cases it appears to be one-sided, giving the landlord the right to claim attorney fees from the tenant if they are successful in any court suit against the tenant. Many tenants are intimidated into paying demands for attorney fees even if no trial is ever held! More over, the determination of who actually has a right to demand attorney fees depends on who actually is the "prevailing party." That's not always as clear as it seems. For example, a case might result in an order for the tenant to pay all or part of the demanded rent, but at the same time the landlord's key demand, eviction of the tenant, is not awarded. So who would be the prevailing party?

In this particular instance, the matter involved a request for "enhanced fees," but we're more interested in how the court calculates the amount the landlord now owes the tenant.

Alamgir v. Poveda, 57624/2009
Decided: January 13, 2010
Judge Laurie L. Lau
KINGS COUNTY
Civil Court

Petitioner's Attorneys: Attn: James Fishman, Fishman & Neil LLP
Respondent's Attorneys: Umana Oton, Esq.

Judge Lau

POST-HEARING DECISION AND ORDER

This owner's use holdover proceeding was dismissed by the Hon. John Henry Stanley's decision and order dated July 2, 2009, granting respondent's motion for summary judgment, and set down for a hearing as to respondent's reasonable attorney's fees as prevailing party. This court conducted a digitally recorded hearing on September 30, 2009, and after due deliberation and consideration of the documentary and testimonial evidence, reaches the following findings of fact and conclusions of law.

Two witnesses, neither subjected to cross-examination, testified for respondent at the hearing James Fishman, a partner at Fishman and Neil, aand Jennifer Addonizion, an associate at the firm. During their testimony, a variety of documents were accepted into evidence. Those included the curriculum vitae of each of the witnesses, the retainer agreement between respondent and Fishman & Neil, handwritten time sheets for both witnesses, and a document summarizing the information contained in those time sheets applying billing rates to each item billed. The respondent's witnesses did not introduce a copy of the lease under which recovery of attorney's fees is sought. This court however, is constrained by the determination of trial court that the lease between the parties permits respondent to recover attorneys fees as the prevailing party, leaving the amount of those fees as the only issue for this court to determine.

James Fishman offered unrebutted testimony that his firm was retained by respondent on February 5, 2009, although the retainer agreement itself was not executed until February 25, 2009. The retainer agreement for an initial payment in the sum of five hundred dollars, with the services of attorneys to be billed at $375 per hour for a partner, $300 per hour for a senior associate, $175 per hour for a junior associate, and $125 per hour for a law graduate. The agreement also provided for an hourly rate of $95.00 for the work of law students, legal assistants and paralegals: Those rates, the agreement stated, were discounted and not intended to limit the rate at which compensation could be sought in the context of an application to the court for an award of attorney's fees. In the context of this motion, respondent's counsel asks that attorneys fees be calculated at a rate of $425 per hour for the services of a partner, and $225 per hour for the services of a junior associate.

Factors to be considered in calculating an award of attorneys fees include "the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved," (Bankers Federal Savings Bank v. Off West Broadway Developer, 2254 AD2d 376, 378[1st Dept 1996][internal quotation marks and citations omitted]). Other factors include the difficulty of the issues and the skill required to resolve them; the lawyer's experience, ability and reputation; the time and labor required, the amount involved and benefit resulting to the client from the services; the customary fee charged for similar services; the contingency or certainty of compensation; the results obtained and the responsibility involved.

(Morgan & Finnegan v. Howe Chemical Co., 21 Ad2d 62, 63 [1st Dept 1994]). Here, the professional standing and reputation of counsel are unquestionably high. As demonstrated by his curriculum vitae, Mr. Fishman has been received the highest rating that Martindale Hubbell offers, and has, at his present firm and at its predecessors, achieved precedent-setting success for clients. Ms. Addonizio, his associate, though new to the practice of law, performed the majority of the services in this proceeding, at markedly lower billing rates than those of Mr. Fishman. Those services combined to achieve unequivocal success for the respondent, at a preliminary stage of litigation, avoiding the time and cost involved in a trial, in a proceeding in which respondent's rent-regulated tenancy of almost 30 years' duration was at stake.

The issues raised by respondent as to the effect of petitioner's one percent ownership interest and the sufficiency of the predicate notice in this proceeding, although resulting in dismissal, however, were by no means novel, complex or even rarely litigated; this is especially true for attorneys such as those involved here, with extensive experience and specialization in the field of landlord and tenant law, Under the circumstances, the court finds it appropriate to calculate fees at the rate set forth in the retainer agreement, rather than at the enhanced rates now sought by counsel. The court further finds it appropriate to limit recovery to fees accruing on or after February 5, 2009, the date on which, according to Mr. Fishman's testimony, his firm was retained. In addition to the time presented on the billing records, Mr. Fishman testified that he in July and in August 2009, the proceeding remained in Part X, awaiting an available judge to conduct the hearing as to attorneys fees, and on those two court dates he was present to proceed to the hearing for 4.25 hours and for 2 hours respectively, and that on the date of the hearing itself, both he and his associate were necessarily present in the courtroom for a period of one hour and forty minutes. A prevailing party may properly the attorney's fees incurred as part of to recover fees to which it is already entitled as prevailing party (Solow Mgmt v. Tanger, 19 AD3d 225, 227 [1st Dept 2005]). The time spent waiting for a hearing to the exclusion of other matters is time for which, to the extent it is reasonable, a party may recover fees.

While the billing records presented include charges beginning in March 2008, the testimony of respondent's counsel established that the firm was retained in February 2009, and the court, therefore, will consider those charges accruing on or after the date on which respondent retained them. The billing records for that date forward show that Jennifer Addonizio billed a total of 21.4 hours over the period from February 20, 2009 through July 24, 2009. Three court appearances took place during that time span, as well as well as preparation and revision of the ultimately successful summary judgment motion. During that time period, Mr. Fishman's billing records include a court appearance, participation in the preparation of the summary judgment motion, a meeting with respondent, and participation in the preparation of the answer, among other things.

Respondent seeks, in addition to the items set forth in billing records, recovery for 6.25 hours during which Mr. Fishman waited in Part X for the hearing on this matter to occur, as well as 1.7 hours during which he and Ms. Addonizio were present for the hearing. The total hours accrued from the date of retention through the hearing are as follows: 23 for Ms. Addonizio and 13.25 for Mr. Fishman.

As petitioner conducted no cross-examination and presented no witnesses, there has been no substantive opposition to petitioner's claims. Given the duration of this proceeding, the number of court appearances involved, the time necessary to prepare a summary judgment motion and the result achieved by the preparation of that motion, the court finds that the time expended is entirely reasonable. At the rates set forth above, respondent is entitled to $4025 for Ms. Addonizio's fees, and $4968.75 for Mr. Fishman's time, for a total of $8993.75. Respondent is awarded a money judgment against petitioner in the sum of $8993.75, representing all attorneys fees accrued through the date of submission of this motion. This is the decision and order of the court.
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