Opinion
8935 8936 Index 154005/15
04-09-2019
JK TWO LLC, Plaintiff–Respondent, v. Simon GARBER, Defendant–Appellant.
Thomas Torto, New York (Jason Levine of counsel), for appellant. Kishner Miller Himes P.C., New York (Elizabeth Tobio of counsel), for respondent.
Thomas Torto, New York (Jason Levine of counsel), for appellant.
Kishner Miller Himes P.C., New York (Elizabeth Tobio of counsel), for respondent.
Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ.
Defendant's arguments that the affirmation of counsel submitted in support of plaintiff's application for an award of reasonable attorneys' fees was insufficient and sought excessive fees are unpreserved for appellate review (see Zacharius v. Kensington Publ. Corp., 167 A.D.3d 452, 453, 90 N.Y.S.3d 25 [1st Dept. 2018] ; 1199 Hous. Corp. v. Jimco Restoration Corp., 77 A.D.3d 502, 909 N.Y.S.2d 429 [1st Dept. 2010] ). In any event, defendant fails to show that the court improvidently exercised its discretion in determining the amount of attorneys' fees to be awarded. The court based its award upon review of appropriate factors, including the time and labor required, the difficulty of the issues involved, and the skill and effectiveness of counsel (see Matter of Freeman, 34 N.Y.2d 1, 9, 355 N.Y.S.2d 336, 311 N.E.2d 480 [1974] ), and reduced the amount requested to eliminate work that was duplicative or was unnecessarily performed by an attorney, rather than a secretary or paralegal. A hearing was not required, since the court "possess[ed] sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered" ( Bankers Fed. Sav. Bank v. Off W. Broadway Devs., 224 A.D.2d 376, 378, 638 N.Y.S.2d 72 [1st Dept. 1996] ).
Although the amount awarded in fees exceeded the amount recovered, plaintiff demonstrated that the litigation was necessitated and prolonged by defendant's unexplained refusal to return its security deposit, as required by the condominium lease, even after entry of judgment and until plaintiff moved for and obtained an order holding defendant in contempt for failing to comply with a postjudgment subpoena. The determination of reasonable attorneys' fees can take into account "whether a party has engaged in conduct or taken positions resulting in delay or unnecessary litigation" ( Cohen–McLaughlin v. McLaughlin, 132 A.D.3d 716, 718, 18 N.Y.S.3d 634 [2d Dept. 2015] ).