Opinion
Index No. 653292/2013
07-12-2023
Tribeca Space Managers, Inc., Plaintiff, v. Tribeca Mews Ltd., BRAD THURMAN, BRAD THURMAN, 25 MYRENTCO, LLC, Defendant.
Rivkin Rader LLP, New York, NY (Evan R. Schieber of counsel), for plaintiff. Braunstein Turkish, LLP, New York, NY (William J. Turkish of counsel), and Meltzer Lippe & Goldstein & Brietstone LLP (Thomas J. McGowan of counsel) for defendants.
Unpublished Opinion
Rivkin Rader LLP, New York, NY (Evan R. Schieber of counsel), for plaintiff.
Braunstein Turkish, LLP, New York, NY (William J. Turkish of counsel), and Meltzer Lippe & Goldstein & Brietstone LLP (Thomas J. McGowan of counsel) for defendants.
Gerald Lebovits, J.
Plaintiff, Tribeca Space Managers, Inc. (board), seeks legal and professional fees from defendant, Tribeca Mews Ltd. (sponsor), under a so-ordered stipulation between the parties. In motion sequence 014, this court ordered sponsor to use its "very best efforts" to obtain a temporary certificate of occupancy within 20 days of the Teams conference held on October 20, 2021. (See NYSCEF No. 471 at 16-24.) On December 28, 2021, the board moved by order to show cause under motion sequence 015 to hold sponsor in contempt of court for not using its "very best efforts" to acquire a temporary certificate of occupancy. (See id.; NYSCEF No. 478.) On August 8, 2022, the parties entered into a stipulation, so-ordered by this court, to resolve motion sequence 015. (See NYSCEF No. 505.)
Paragraph 25 in the stipulation provides that "[t]he amount of legal and professional fees incurred by Plaintiffs in connection with this motion [sequence 015] only, shall be severed and determined by the Court upon service of the application restoring the motion solely for that limited purpose, to which Sponsor may file opposition." (Id. at ¶ 25 [emphasis in original].) The board now moves to restore motion sequence 015 for the limited purpose of determining the amount of legal and professional fees due from sponsor. (See NYSCEF No. 506 [notice of motion].) Sponsor disputes any obligation to pay any legal or professional fees.
This court concludes that the board is entitled to some, but not all, of the legal and professional fees sought on this motion.
DISCUSSION
I. The Board is Entitled to Fees under ¶ 25 of the Parties' Stipulation
Sponsor argues first that there is no basis for the board to obtain any fees. (See NYSCEF 514 at ¶¶ 2, 11-14, 16.) In motion sequence 015, the board sought to hold sponsor in contempt under Judiciary Law § 773. (NYSCEF No. 472.) Sponsor points out that under Judiciary Law § 773, attorney fees cannot be awarded to a party unless the other party was found in contempt. (See NYSCEF 514 at ¶ 14.) Thus, according to sponsor, the board is not entitled to legal and professional fees because this court did not find that sponsor was contumacious in motion sequence 015. To the contrary, sponsor contends, it used its best efforts to obtain a temporary certificate of occupancy, making any contempt finding inappropriate. (See id. at ¶¶ 3, 14.)
A party may not collect legal fees and expenses unless authorized by statute, agreement, or court rule. (56th St. Swim & Health Club, Inc. v 350 W. 57th St. Co., 145 A.D.2d 311, 311 [1st Dept 1988] .) Courts construe a stipulation as an independent contract between the parties. (See e.g. Matter of Stravinsky, 4 A.D.3d 75, 81 [1st Dept 2003].) The stipulation in motion sequence 015 contains two relevant provisions related to the board's putative right to collect attorney and professional fees from defendants. (See NYSCEF No. 505 at ¶¶ 24, 25.) Paragraph 24 provides that in the event of sponsor's default, the board may restore the motion sequence 015 for contempt and seek all available remedies for contempt. (See id. at ¶ 24 [emphasis added].) And paragraph 25 provides that the board may restore the motion for contempt to determine the amount of legal and professional fees. (See id. at ¶ 25.)
A court should read a stipulation to give effect to each paragraph of the stipulation. (See id.; see also Angelo Gordon Real Estate Inc. v Benlab Realty LLC, 216 A.D.3d 420, 420 [1st Dept 2023].) Since "legal and professional fees" in paragraph 25 fall under "all available remedies" in paragraph 24, interpreting paragraph 25 only in the event of sponsor's default would render paragraph 25 superfluous. Thus, this court reads each paragraph with a distinct purpose: paragraph 24 defines the consequences in the event of sponsors' default, and paragraph 25 establishes the board's right to claim fees independent of default.
Sponsor thus misses the mark in relying on the argument that this court, in considering motion sequence 015, did not hold sponsor in contempt under Judiciary Law § 773. Paragraph 25 of the stipulation gives the board the right to move to restore to obtain an award of attorney fees incurred in litigating motion sequence 015 (in an amount determined by the court). That is true regardless whether this court issued an order resolving the motion and holding sponsor in contempt, or whether the board could show that the court would have held sponsor in contempt had it reached that issue on the motion. The sole remaining question, then, is the amount of fees to which the board is entitled.
II. The Amount of Fees to Which the Board is Entitled
The board seeks $41,313.00 in legal fees, $41,386.25 in professional engineering fees, and an estimated $15,000 for additional fees incurred on this motion. (NYSCEF No. 507 at ¶ 20.) Sponsor contends that the board overstates the amount of legal and professional fees, fails to provide sufficient supporting documentation for either legal or professional fees, and is not entitled to fees on fees for bringing this motion. (See NYSCEF No. 514 at ¶¶ 17-19, 22-34.) This court agrees with sponsor that the board is not entitled to all the fees it claims.
If a stipulation specifies the legal fees to be awarded, a court must follow the formula given. (See 56th St. Swim & Health Club, 145 A.D.2d at 311.) When assessing the reasonableness of legal fees, a court may consider factors such as "'the time commitment involved, the relative difficulty of the matter, the nature of the services provided, counsel's experience and the results obtained.'" (Matter of Fairley v Fairely, 136 A.D.3d 432, 433 [1st Dept 2016], quoting Matter of Rose BB., 35 A.D.3d 1044, 1046 [3d Dept 2006].) The movant must demonstrate the reasonableness of the fees. (EVUNP Holdings LLC v Frydman, 154 A.D.3d 558 [1st Dept 2017].) A court may scrutinize each entry in a billing record relating to a claim of legal fees and reduce the amount requested to be awarded at the court's discretion. (See RMP Capital Corp. v Victory Jet, LLC, 139 A.D.3d 836, 840 [2d Dept 2016].)
The so-ordered stipulation in motion sequence 015 provides for fees related only to motion sequence 015. (NYSCEF No. 505 [providing that plaintiff may recover "[t]he amount of legal and professional fees incurred by Plaintiffs in connection with this motion [sequence 015] only" [emphasis in original].) The board submits a series of invoices for legal and engineering fees. (NYSCEF Nos. 508, 509.) Both sets of legal and engineering invoices break down the individual legal and engineering services performed for the board and set out specific billing rates for professionals at various experience levels. (Id.) An analysis of the billing record reflects that in both the legal and engineering invoices, the board seeks to recover charges that do not pertain to motion sequence 015. There are some charges incurred before the resolution of motion sequence 014 and others incurred after the completion of briefing on motion sequence 015. Removing the items unrelated to motion sequence 015, the board's counsel billed a total of 61.30 hours on motion sequence 015. That hours total is within the reasonable range considering the legal and factual complexity of the matter. The rates charged by the board's legal team were appropriate when considering comparable legal services of attorneys and paralegals of similar experience levels in the district. Thus, this court awards the board $26,050.50 in legal fees.
With respect to the engineering fees, the invoices submitted by the board frequently lack clear descriptions of the services being billed for. And most of the invoices do not establish a connection between the provided services and motion sequence 015, either. (Cf. RMP Capital Corp., 139 A.D.3d 836, 840 [2d Dept 2016] [reducing fees due to vague and nonspecific billing entries].) For instance, the engineering billing details mention site visits to specific units and meetings with sponsor's engineers, but do not explain how those visits are relevant to motion sequence 015. (Cf. W. End Ave Dev. LLC v. Ngamwajasat, 2023 NY Slip Op 31656[U] [Sup Ct, Kings County 2023] [describing the purposes for which respondents retained an architect].) The board represents that it used its engineer, Stephanie Nussbaum, to address false contentions raised by sponsor and identify ways in which sponsor was deficient in obtaining an temporary certificate of occupancy. (See NYSCEF No. 507 at ¶¶ 27, 37-40.) However, the deficiencies that the board points out, such as superseding the original deceased architect as the appropriate applicant of record, were already resolved on motion sequence 014. (See id. at ¶ 37; see also NYSCEF No. 466.) The board is therefore entitled only to a small proportion of the total engineering hours claimed. Sponsor does not dispute the reasonableness of the engineer's hourly rates, only the number of hours billed. This court concludes that the board has shown that it is entitled to $9,245 in engineering fees, not the larger amount claimed.
Finally, the board seeks attorney fees related to this motion (which it estimates at fully $15,000). But a party may not obtain the legal fees incurred in bringing a fees application (so-called fees on fees) unless the underlying statute or contract manifests an unmistakably clear intent to permit recovery of fees on fees. (IG Second Generation Partners, L.P. v Kaygreen Realty Co., 114 A.D.3d 641, 644 [2d Dept 2014]; Jones v Voskresenskaya, 125 A.D.3d 532, 534 [1st Dept 2015].) Paragraph 25's language contains no indication that the board may obtain fees on fees.
Accordingly, it is
ORDERED that plaintiff's motion to restore motion sequence 015, for the limited purpose of determining the amount of the legal and professional fees to which the board is entitled to from sponsor under ¶ 25 of the parties' August 3, 2022, stipulation is granted; and it is further
ORDERED that the issue of the amount of those fees is severed from the remaining claims in this action; and it is further
ORDERED that the board is awarded a judgment against sponsor for $26,050.00 in legal fees and $9,245.00 in engineering fees; and it is further
ORDERED that the board serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly.