Opinion
650106/11, 870NA, 870N.
04-19-2016
Naum FREIDMAN, Plaintiff–Appellant, v. YAKOV also known as Jacob Fayenson, et al., Defendants–Respondents, Korm Realty Inc., Nominal Defendant–Respondent. Jacob Fayenson Revocable Trust, Counterclaim Plaintiff–Respondent, v. Naum Freidman, et al., Counterclaim Defendants–Appellants, Korm Realty Inc., Nominal Defendant–Respondent.
Tenenbaum Berger & Shivers LLP, Brooklyn (Rebecca A. Crance of counsel), for appellants. Val Mandel, P.C., New York (Eric Wertheim of counsel), for respondents.
Tenenbaum Berger & Shivers LLP, Brooklyn (Rebecca A. Crance of counsel), for appellants.
Val Mandel, P.C., New York (Eric Wertheim of counsel), for respondents.
FRIEDMAN, J.P., ANDRIAS, MOSKOWITZ, KAPNICK, WEBBER, JJ.
Opinion Order, Supreme Court, New York County (Eileen Bransten, J.), entered December 9, 2013, which, to the extent appealed from as limited by the briefs, found that counterclaim defendant Evgeny Freidman (Evgeny) and nonparty Michael Cohen (a lawyer at counterclaim defendant Tenenbaum & Berger LLP) had engaged in frivolous conduct and awarded attorneys' fees and costs to defendants, unanimously affirmed, with costs. Order, same court and Justice, entered September 17, 2014, which denied the cross motion of plaintiff-counterclaim defendant Naum Freidman (Naum), Evgeny, and Tenenbaum & Berger (collectively, counterclaim defendants) to disaffirm a Special Referee's report and granted defendants' motion to confirm it, unanimously affirmed, with costs.
The court providently exercised its discretion by finding that Evgeny engaged in frivolous conduct and sanctioning him (see e.g. Great Am. Ins. Cos. v. Bearcat Fin. Servs., Inc., 90 A.D.3d 533, 934 N.Y.S.2d 413 [1st Dept.2011], lv. dismissed 18 N.Y.3d 951, 944 N.Y.S.2d 472, 967 N.E.2d 697 [2012] ; G & T Term. Packaging Co., Inc. v. Western Growers Assn., 66 A.D.3d 563, 886 N.Y.S.2d 598 [1st Dept.2009] ). In addition to the episode on which the motion court relied, where Evgeny—a lawyer who was present at Naum's deposition as an observer and a party—launched a profanity—laden attack on the lawyer conducting the deposition, we have, as requested by counterclaim defendants, reviewed the entire deposition transcript and find it replete with instances of conduct “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130–1.1 [c][2] ). Although Evgeny is a practicing lawyer, the record shows that he claimed not to know basic legal terms and repeatedly played word games with defense counsel.
The motion court's decision to impose sanctions on Cohen was not an improvident exercise of discretion (see Great Am. Ins. Cos., 90 A.D.3d at 533, 934 N.Y.S.2d 413 ).
Counterclaim defendants' argument that the court erred by awarding sanctions without a hearing is unpreserved (see Martinez v. Estate of Carney, 129 A.D.3d 607, 609, 13 N.Y.S.3d 20 [1st Dept.2015] ), and unavailing (see id. ).
Counterclaim defendants' contention that the Special Referee should not have admitted defense counsel's redacted invoices in evidence as a business record is also unpreserved (see e.g. Matter of Carmine G. [Franklin G.], 115 A.D.3d 594, 982 N.Y.S.2d 318 [1st Dept.2014] ), and unavailing (see D.B. Zwirn Special Opportunities Fund, L.P. v. Brin Inv. Corp., 96 A.D.3d 447, 448, 945 N.Y.S.2d 556 [1st Dept.2012] ). Unlike 135 E. 57th St., LLC v. 57th St. Day Spa, LLC, 126 A.D.3d 471, 2 N.Y.S.3d 789 (1st Dept.2015), there was an affirmation supporting defendants' fee request, and monthly statements and bills were admitted into evidence.
The court providently exercised its discretion (see 542 E.
14th St. LLC v. Lee, 66 A.D.3d 18, 24, 883 N.Y.S.2d 188 [1st Dept. 2009] ) by awarding $18,530 in attorneys' fees. Block billing, about which counterclaim defendants complain, “is common practice among law firms” (Daniele v. Puntillo, 97 A.D.3d 512, 513, 949 N.Y.S.2d 365 [1st Dept.2012], lv. denied 20 N.Y.3d 851, 2012 WL 5845584 [2012] ), and does not “render the invoiced amounts per se unreasonable” (546–552 W. 146th St. LLC v. Arfa, 99 A.D.3d 117, 123, 950 N.Y.S.2d 24 [1st Dept.2012] ). Here, the work performed by defendants' attorneys was more than sufficiently detailed by the billing attorney's credible testimony (id. ). Furthermore, the Special Referee reduced the amount sought by defendants due to the block billing (see Matter of Silverstein v. Goodman, 113 A.D.3d 539, 540, 979 N.Y.S.2d 308 [1st Dept.2014] ).
We have considered counterclaim defendants' remaining arguments and find them unavailing.