Mangano v. Burke has not yet appeared in the Official Reports, so cite as noted by Hawk.
NYHawk Member # 18 posted June 29, 2005 11:18 AM
NYLJ "Decision of Interest" blurb:
IN A NONPAYMENT proceeding, respondent rent-stabilized tenant moved to vacate default, dismiss the petition and recover attorney's fees from petitioner landlord. Respondent was restored possession, and the case was dismissed for insufficient service. The court explained that attorney's fees in a landlord-tenant proceeding may be awarded if there is a valid lease with an attorney's fees clause. However, here, respondent's copy of the lease had been lost. Nevertheless, the court decided that respondent did not have to produce the lease because petitioner had sought attorney's fees in its petition, alleging the lease entitled the landlord to recover its attorneys fees from the tenant. The court determined that petitioner's allegations in the petition constituted judicial admission. Based on these admissions, it relieved respondent of his obligation to produce the lease containing an attorney's fees clause, and awarded him more than $20,000 in incurred attorney's fees.
Case Citation:
Mangano v. Burke, NYLJ, 6/28/05, page 19, col. 3 [N.Y.C. Civ. Ct., N.Y. County, Michelle D. Schreiber, J.].
Mangano v. Burke
Decision and Order [Footnote number 1.]
Honorable Michelle D. Schreiber, J.
In this nonpayment proceeding the respondent moved to vacate his default, dismiss the petition, and for attorneys fees. The motion was granted by Judge Bernard Leverett to the extent to setting the matter down for a traverse hearing; the balance of the motion to dismiss was stayed and the decision was silent as to attorneys fees.
This Court conducted the traverse hearing and issued a decision dated April 19, 2005 sustaining the traverse and dismissing the petition; the balance of the motion to dismiss was denied as moot. Respondent now moves to reargue to the extent of seeking a determination on a his motion for legal fees; alternatively, he seeks to have the matter referred to judge Leverett. In1 his reply papers respondent also seeks sanctions against the petitioner and discovery. Respondent argues that his request for attorney's fees should be granted as unopposed because petitioners did not object to it until the submission of sur-reply papers. [Footnote number 2.] Petitioners cross-move pursuant to CPLR §4404(b) for reconsideration of the decision on the traverse.
Turning first to the petitioners' cross-motion, CPLR §4404(b) states that a party may move to set aside a decision after a non-jury trial. The Court may make new findings of fact or conclusions of law, with or without taking additional testimony, and render a new decision or order a new trial. CPLR §4405 mandates that the motion must be made within fifteen days of the decision.
Here, the decision was dated April 19, 2005; it was filed in the clerk's office on April 26, 2005. The petitioners' motion was filed on May 19, 2005, more than fifteen days from either the date of the decision or the filing date. Notwithstanding the untimeliness of their motion, petitioners ask the Court to exercise its discretion pursuant to CPLR §2004 and allow the late filing of the motion for good cause. However, petitioners have failed to establish good cause to extend their time, and the motion is therefore denied as untimely. Even assuming the motion had been timely, petitioners failed to set forth a basis for this Court to set aside its decision as they fail to establish that the Court overlooked any facts. Rather, it appears petitioners actually seek reconsideration of facts already in evidence, and their remedy is to appeal if appropriate.
Tuning to the respondent's motion, CPLR §2221(d) provides that a motion for leave to reargue shall be based on facts or law allegedly overlooked or misapprehended by the court in determining the prior motion. The respondent moves to reargue asserting that the Court failed to address his request for attorney's fees. This Court conducted a traverse hearing, and having sustained the traverse, dismissed the petition rendering other bases for dismissal moot. The respondent's motion for attorney's fees was therefore not addressed either by this Court or by Judge Leverett. Accordingly, the motion to reargue is granted to the extent of deciding the respondent's request for attorney's fees as indicated below.
Attorney's fees in a landlord-tenant proceeding may be awarded if there is a valid lease with an attorney's fees clause. While the clause is applicable to landlords only, RPL §234 imposes a reciprocal duty to pay attorney's fees to the tenant if the tenant prevails in the lawsuit. Here, the respondent prevailed but cannot locate his original lease in order to establish that it contained an attorney's fees clause. Instead, respondent argues that the language in paragraphs four and nine of the petition constitute and admission of a lease between the parties containing the requisite language.
In support of his claim the respondent relies on East Egg Assoc. v. Diraffaele, 158 Misc.2d 364 (Civ. Ct. NY Cty 1993) aff'd 160 Misc.2d 667 (AT 1st Dep't 1994). The tenant in East Egg was awarded summary judgment in a non-primary residence holdover proceeding. A hearing was ordered on the tenant's counterclaim for attorney's fees although she could not produce a lease containing an attorney's fees clause. In relieving the tenant from producing the lease the Court held that the landlord's verified petition contained a formal judicial admission that there was a lease between the parties entitling it to attorney's fees, and pursuant to RPL §234 the tenant had a reciprocal right. Specifically, the clause in the verified petition in East Egg stated:
In accordance with the terms of the most recent rental agreement between the parties herein, respondent agreed to pay . . . costs and disbursements, including reasonable legal fees which might be incurred by the landlord in any action to enforce the landlord's rights under said rental agreement.
Here, paragraph four of the petition states, "[t]he lease for the subject premises provides for rental and additional rental, and said rental has accrued in the amount of $635.00 . . . .." Paragraph nine of the petition states "[f]urther additional rent has accrued based upon legal fees incurred by Petitioner in the institution and maintenance of this proceeding . . . in the amount of $1,500.00 or whatever amount the Court herein determines to be fair and reasonable." In reading paragraph nine in conjunction with paragraph four this Court concludes that instant petition, like the one in East Egg, contains, a judicial admission by the petitioner regarding the attorneys fees clause in the lease. See also, Partnership 92 West, L.P. v. Woods, 186 Misc. 2d 445 (AT 1st Dep't 2000) app den 2001 NYAD LEXIS 3486.
In opposition to the respondent's motion counsel for the petitioners argues that East Egg is inapplicable since the allegations in the instant case were made upon information and belief. Contrary to the assertion, only paragraph ten of the petition contains the prefatory language "upon information and belief' while the other paragraphs have no such limitation. Given the specific reference in paragraph ten and the failure to include the limitation in any other paragraph, the fact that statements made on information and belief may not be entered into evidence as formal or informal judicial admissions is irrelevant herein, See e.g., Scolite International Corp. v. Vincent J. Smith, Inc., 68 A.D.2d 417 (3rd Dep't 1979). Nor is the Court persuaded that the attorney verification which contains a general "on information and belief" provision is sufficient to cure the omission in the specific paragraphs of the petition dealing with attorney's fees.
Accordingly, this matter is restored to the Part T calendar for a hearing on the amount of attorney's fees. Based upon the judicial admissions in the petition the respondent is relieved of his obligation to produce the lease containing an attorney's fees clause. The hearing shall take place on June 23, 2005 at 9:30 a.m. Respondent's request for discovery is denied as moot and the application for sanctions is denied in the discretion of the Court.
1. The Court gratefully acknowledges the assistance of Court Attorney Frances Ortiz in the preparation of this decision.
2. Although opposition was improperly raised by the petitioner only his sur-reply, in view of the strong judicial preference for resolutions on the merits, the opposition is deemed timely filed.