Summary
In Pastena, the prior action was a plenary action brought by tenant against landlord, not a Housing Court summary proceeding brought by landlord against tenant.
Summary of this case from Caprice Assocs. v. MartelOpinion
Index No. 655503/2021
01-03-2023
61 WEST 62 OWNERS CORP., Plaintiff, v. Janis A. PASTENA, Defendant.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 were read on this motion for SUMMARY JUDGMENT.
Plaintiff, 61 West 62 Owners Corp., is a residential cooperative apartment building. Plaintiff brought this action to recover unpaid fees and charges allegedly owed by defendant, Janis A. Pastena, a building resident. Plaintiff's complaint also requests attorney fees—both for this action and for a 2014 action defendant brought against plaintiff.
Plaintiff now moves for summary judgment under CPLR 3212. Defendant does not oppose the motion. With respect to plaintiff's claims to recover unpaid fees and charges owed under the lease and the building's governing documents, the motion is granted. Plaintiff's attorney-fee claim for the fees incurred in this action is granted; the claim for fees incurred in the earlier action is denied and that claim is dismissed.
DISCUSSION
1. Plaintiff's first three causes of action seek recovery of unpaid sublet fees, assessment arrears, and unpaid late fees, respectively—each of which plaintiff contends are owed by defendant under the building's by-laws and house rules.
On the first cause of action, plaintiff represents that since 1986, when defendant bought the apartment, defendant has sublet it to third parties and that the building by-laws provide that the Board may collect reasonable fees on sublets (at a rate set in the house rules). (See NYSCEF No. 2 at ¶¶ 22, 29, 31.)
On the second cause of action, plaintiff represents that the building's house rules provide that "special assessments" may be added to an apartment owner's monthly invoice "for the purpose of balancing the Owner's budget, capital improvements, repairs and/or replacements, and/or for addition to the reserve fund." (NYSCEF No. 6 at ¶ [a].) On the third cause of action, plaintiff represents that the house rules provide that "[u]nless waived ... for good cause shown, a late payment fee in the amount provided for below ... will be imposed if full payment of all amounts due ... has not been received by the Managing Agent." (Id. )
To support these claims, plaintiff has submitted the affidavit of its custodian of records (NYSCEF No. 12); copies of the co-op lease, by-laws, and house rules (NYSCEF Nos. 4-6); a copy of the ledger for defendant's apartment (NYSCEF No. 15); and a copy of defendant's accountant's letter acknowledging defendant's unpaid sublet fees (NYSCEF No. 17). This showing satisfies plaintiff's burden at summary judgment to show prima facie that it is entitled to judgment as a matter of law. (See Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986].)
Defendant has not opposed this motion. And defendant's answer, although stating her disagreement with the allegations of plaintiff's complaint, does not attach any admissible evidence that might establish material disputes of fact. The branches of plaintiff's motion seeking summary judgment on its first, second, and third causes of action are granted.
It is possible that some of the unpaid fees at issue accrued more than six years before plaintiff began this action in September 2021. Defendant did not, however, raise the statute of limitations as an affirmative defense in her answer (nor move to dismiss). That defense has been waived. (CPLR 3211 [e].)
Plaintiff also moves to dismiss the affirmative defenses raised in defendant's answer. This court agrees with plaintiff that defendant's third, fourth, fifth, sixth, and seventh affirmative defenses should be dismissed for lack of any supporting factual allegations. (See Kronish Lieb Weiner & Hellman LLP v Tahari, Ltd. , 35 AD3d 317, 319 [1st Dept 2006].) Defendant's first affirmative defense, sounding in claim and issue preclusion, is without merit: Defendant brought the earlier action, not plaintiff; plaintiff prevailed on the merits of defendant's claims in that action; and plaintiff's claims here would not undermine any rights or interests established in the first action. Defendant's second affirmative defense is that she already paid the disputed sublet fees into escrow. But the record on this motion reflects that defendant's own accountant conceded in a letter to plaintiff that those payments did not cover the full amount of the sublet fees owed by defendant. (See NYSCEF No. 17 at 1.)
2. Plaintiff's fourth and fifth causes of action request attorneys' fees and costs incurred in litigating the 2014 action brought by defendant against plaintiff, and the present action brought by plaintiff against defendant, respectively. These claims are based on ¶ 28 of defendant's lease. That paragraph provides that
"[i]f the Lessee shall at any time be in default hereunder and the Lessor shall incur any expense (whether paid or not) in performing acts which the Lessee is required to perform, or in instituting any action or proceeding based on such default, or defending, or asserting a counterclaim in, any action or proceeding brought by the Lessee, the expense thereof to the Lessor, including reasonable attorney's fees and disbursements, shall be paid by the Lessee to the Lessor, on demand, as additional rent." (NYSCEF No. 4 at ¶ 28.)
Plaintiff's attorney-fee claim arising from the 2014 action, however, is foreclosed by the bar on claim-splitting. Under that bar, plaintiff was required to have sought "attorneys' fees within the action in which they were incurred, not a subsequent action." ( O'Connell v 1205-15 First Ave. Assoc., LLC , 28 AD3d 233, 234 [1st Dept 2006].) The branch of plaintiff's motion seeking summary judgment on its fourth cause of action is denied, and that cause of action is dismissed.
3. Plaintiff brought this action to recover fees and charges owed by defendant under the lease and building rules incorporated into the lease. Plaintiff's claims are thus based on lease-defaults by defendant for purposes of the lease's attorney-fee provision. Plaintiff is therefore entitled to its reasonable attorney fees incurred in the action. Plaintiff claims fees and disbursements of $12,928.28, representing approximately 27 hours billed. (See NYSCEF No. 11 at ¶¶ 4, 21-28 [attorney affirmation discussing fees]; NYSCEF No. 20 [invoices].) Approximately two hours of that time appears from plaintiff's invoices to relate only to pre-action negotiations with defendant, rather than to instituting and prosecuting this action. (See NYSCEF No. 20 at 2-4.) And this court is not persuaded that the remaining $11,611.28 constitutes reasonable attorney fees incurred in filing a complaint and doing summary-judgment research on a claim for $22,413.44 in unpaid charges and for $11,420.78 in fees billed six years earlier in another action. The court therefore decreases that amount by 25%.
Plaintiff has not sought to recover attorney fees incurred in drafting, reviewing, or filing its summary-judgment motion in this action.
As discussed above, the rule against claim-splitting bars plaintiff from recovering fees from the earlier action.
Accordingly, it is
ORDERED that the branches of plaintiff's motion seeking summary judgment against defendant on plaintiff's first, second, and third causes of action are granted; and it is further
ORDERED that the branch of plaintiff's motion seeking to dismiss defendant's affirmative defenses is granted, and those defenses are dismissed; and it is further
ORDERED that the branch of plaintiff's motion seeking summary judgment on plaintiff's fourth cause of action for attorney fees incurred in an earlier action is denied, and summary judgment dismissing that cause of action is granted to defendant as the nonmoving party under CPLR 3212 (b) ; and it is further
ORDERED that the branch of plaintiff's motion seeking summary judgment on plaintiff's fifth cause of action for attorney fees incurred in this action is granted in part and denied in part; and it is further
ORDERED that plaintiff is awarded a money judgment in the amount of (i) $22,413.44 for unpaid fees and charges, with interest running at the statutory rate from July 1, 2021; plus (ii) $8,721.59 in attorney fees and disbursements; plus (iii) any additional costs and disbursements, as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on defendant and on the office of the County Clerk, which shall enter judgment accordingly.