Respondent 17 East 89th Street Tenants, Inc. (hereinafter "the co-op") moves, for an order (1) confirming the report of Special Referee Leslie S. Lowenstein, appointed to hear and report pursuant to this court's order dated June 2, 2006, (2) granting the co-op judgment in the amount of $101,297.91 against petitioner, (3) imposing sanctions on the petitioner, (4) awarding an additional $37,166.08 in fees and costs incurred by counsel on behalf of the co-op in connection with the fee application; and (5) directing that Balber Pickard Battistoni Maldonado & Van Der Tuin, P.C. ("the Balber firm"), as escrowee of the proceeds of the sale of apartment 1-D

disburse to the co-op any sums remaining in the escrow account in full or partial satisfaction of the judgments obtained herein. Kurzman Karelsen & Frank, LLP (the Kurzman firm"), which represented the co-op in various litigations brought by and involving petitioner joins in the co-op's motion seeking to confirm the Referee's report.

Petitioner Zion Tsabbar ("Tsabbar"), who is pro se, opposes the co-op's motion and cross moves for various relief.

Tsabbar is a dentist, who, beginning in November 3, 1995, held a proprietary lease for apartment 1D at 17 East 89th Street, New York, NY ("the Apartment") in the co-op out of which he operated a private dental practice. A dispute between Tsabbar and the co-op arose concerning Tsabbar's subletting of his Apartment without the co-op's written approval in violation of the parties' lease ("the Lease"). After approximately six years of litigation, which included multiple actions filed by Tsabbar in an attempt to relitigate issues decided against him, on April 8, 2003, the co-op obtained an order restoring it to possession of the Apartment occupied by Tsabbar, and finding Tsabbar liable for use and occupancy (i.e. maintenance charges), attorney's fees, and rent [*2]arrears.^[FN1] Tsabbar sought relief in federal court and also moved to vacate the order and appealed it, but was unsuccessful.^[FN2] He was subsequently ejected from the Apartment, which was sold at auction to a third party on December 22, 2005, and a new proprietary lease and shares of stock in the Apartment were issued. The net proceeds of the sale totaled $690,000, and the money placed in escrow with the Balber firm.

The co-op then moved for an order directing "the Balber firm," as escrowee of the proceeds of the sale to pay a certain portion of the proceeds to the co-op for unpaid maintenance, interest and legal fees. Tsabbar opposed the motion and cross-moved for certain relief.

By decision and order dated June 2, 2006, the court held, inter alia, that in accordance with the applicable provisions Lease, the co-op was entitled to use the proceeds of the sale of Tsabbar's apartment to pay reasonable attorneys' fees and expenses to the extent these fees and expenses were incurred in actions related to Tsabbar's defaults under the Lease.^[FN3] Also pursuant to its June 2, 2006 decision and order as modified on October 5, 2006, the court appointed Special Referee Les Lowenstein to hear and report with recommendations on the following issues:

(1) the amount of reasonable counsel fees and costs attributable to Jeffrey Goldberg, Esq. in the action in Supreme Court, New York County, bearing Index No. 111258/02 ("the New York County action"), in the action commenced by petitioner in the Supreme Court, Queens County, bearing Index 17842/04 ("the Queens County action"), and an action commenced by petitioner in the United States District Court for the Southern District of New York, bearing case number [*3]04-CV-10215 ("the Federal Action");

(2) Whether the Queens County action and the Federal action are sufficiently related to petitioner's default under the proprietary lease so that counsel fees can be recovered thereupon by the co-op;

(3) a calculation of the interest due and owing the co-op for outstanding maintenance and electric charges;

(4) The amount of reasonable counsel fees and costs attributable to the Kurzman firm for various litigation brought by and involving Tsabbar.

A hearing on these issues was held before the Referee on December 20, 2006, and was continued and completed on January 17, 2007. At the hearing, the co-op called Jeffrey Goldberg, Eq. and Stanley Margolies, Esq., who is counsel to the Kurzman firm, and introduced 19 exhibits into evidence. Tsabbar offered his own narrative testimony, and introduced one exhibit.

On March 5, 2007, the Referee filed his report together with a transcript and evidence introduced during the proceeding. In his report, the Referee recommended that:

(1) the co-op should be awarded $37,500 for fees and legal services rendered on its behalf by Jeffrey Goldberg, Esq ^[FN4]. in connection with the litigations brought by the Tsabbar in New York County, Queens County and the Federal actions all of which arose out of or under Tsabbar's adjudicated default under the lease and for the period commencing in July of 2004 through August 2006;

(2) the co-op should be awarded interest upon Tsabbar's maintenance arrears in the amount of $22,562.77; and

(3) the co-op should be awarded $41,235.14 for fees and legal services rendered on its behalf by the Kurzman firm ^[FN5] after April 2006, in connection with its opposition to the writ of certiorari filed by Tsabbar with the United States Supreme Court, the Queens action and the Federal action.

The co-op now moves for an order confirming the Referee's report and granting judgment in its favor in the amount of $101,297.91, which is the total found to be due and owing to co-op for legal fees, and interest on maintenance arrears, and Tsabbar opposes the motion.

"It is well settled that the report of a Special Referee shall be confirmed whenever the findings contained therein are supported by the record and the Special Referee has clearly defined the issues and resolved matters of credibility...since the Special Referee is considered to be in the best position to determine the issues presented." Nager v. Panadis, 238 AD2d 135, 136 (1st Dept 1997). [*4]

In this case, the record supports the Referee's recommendations with respect to the reasonable value of legal services rendered to the co-op by Jeffrey Goldberg, Esq. in connection the litigations brought by the Tsabbar in New York County, Queens County and the Federal court. Specifically, the transcript shows, and the Referee's decision reflects, that the Referee heard testimony from Mr. Goldberg regarding his experience as an attorney, the legal services he rendered to the co-op in this actions including the time spent, and the nature and extent of the legal services provided. Based on this evidence, the Referee credited Mr. Goldberg with providing 150 hours of legal services in three litigations during the period from July 2004 to August 2006 at a rate of $250 an hour for a total amount of $37,500.

The Referee also determined that the Queens County and Federal actions were sufficiently related to Tsabbar's default under the Lease so that counsel fees could be recovered by the co-op. In its June 2, 2006 decision and order the court found that under the Lease, the co-op was entitled to recover "reasonable attorneys' fees and expenses incurred in connection with the litigations arising out of same dispute involving Tsabbar's default under the Lease in subletting the apartment, including the co-op's successful effort to terminate Tsabbar's lease and to eject him" (Decision at 16).

The record indicates that in the Queens County action, Tsabbar sought to regain possession of the Apartment to sell it and sought damages claiming that the co-op had unlawfully evicted him. This action thus sought to relitigate the decisions resulting in Tsabbar's loss of his shares in the Apartment and the judgment of ejection and thus is directly related to the dispute involving Tsabbar's default and the co-op's efforts to eject him. The Federal action alleged that Tsabbar's civil rights were violated based on acts taken by the co-op and the Sheriff to evict him, and sought, inter alia, to enjoin the co-op, which had already been awarded a judgment of possession from accessing the apartment. As the Federal action attempted to undo the judgment of ejectment, it too arose out of Tsabbar's default under the Lease. Thus, the record supports the Referee's finding that, under the Lease, the co-op was entitled to recover attorneys' fees expended in the litigating the Queens County and Federal actions.

The record also supports the Referee's award of attorneys' fees to the Kurzman firm for services it rendered to the co-op in connection with the writ of certiorari filed by Tsabbar with the United States Supreme Court ^[FN6], and the Queens County and Federal actions. The record contains testimony from Mr. Margolies regarding the work performed by the Kurzman firm in its role as counsel to Mr. Goldberg in the Queens County and Federal actions and in opposition to Tsabbar's application before the U.S. Supreme Court, and includes the brief filed by the Kurzman firm in the U.S. Supreme Court case. In recommending that the co-op should be awarded a total of $41,235.14 ^[FN7] for counsel fees and costs incurred by the Kurzman firm,^[FN8] the Referee considered [*5]Mr. Margolies' testimony, which he found credible, regarding the nature legal services provided, the complexity of the matters the firm dealt with and the experience of the attorneys who worked on these matters together with the billing records for these services. See Williams v. Perretti, 163 Misc 2d 770, 772 (App. Term 1st Dept 1995)(holding that "[i[t is for the Referee as the trier of fact, to weigh and evaluate the extensive documentation and testimony offered as to the reasonableness of the legal fee incurred").

Furthermore, contrary to Tsabbar's position, the lack of documents reflecting the work the Kurzman firm performed in the Queens County and the Federal actions does not preclude their recovery of fees for this work since the record contains evidence, including Mr. Margolies' testimony and billing records, that the fees were incurred in connection with the Kurzman firm's regular consultations with Mr. Goldberg, and various court appearances made by the Kurzman firm. Accordingly, the Referee's recommendation as to the reasonableness of the fees incurred by the Kurzman firm should be confirmed.

The next issue concerns the Referee's recommendation that the co-op should be awarded interest upon Tsabbar's maintenance arrears in the amount of $22,562.77. In its decision and order dated June 2, 2006, the court found that the co-op was entitled to recover unpaid maintenance and electrical charges in the amount of $67,188.45 (exclusive of interest) based on the affidavit from an employee of the co-op's managing agent and a Resident Leger sheet for Tsabbar. The co-op also requested that it be awarded interest in the amount of $18,019.90. The court noted that under the Lease, the co-op could recover simple interest on unpaid maintenance (rent) at the "maximum rate permitted by law,"and referred the issue of the amount of interest in the Special Referee.

In his report, the Referee noted that 18% is the maximum rate of interest permitted by law (815 Park Avenue Owners Corp. v. Lapidus, 227 AD2d 353 (1st Dept 1996), and as per his request that the co-op made a timely post-hearing submission to him regarding the calculation of interest on the maintenance charges from July 2003 (when the unpaid maintenance began to accrue until August 2006 (following the sale of Tsabbar's apartment). He found that "the interest on the unpaid maintenance was correctly calculated (by the co-op) to [equal] $22,562.77 [and that] "the amount sought is simple interest and not compounded interest."

As the record supports the Referee's calculation of interest on maintenance payments, his report should be confirmed as to this issue. Furthermore, Tsabbar's belated challenge to the amount of maintenance owed does not provide a basis for rejecting the Referee's determination since this issue was decided in the court's decision and order dated June 2, 2006 based on evidence submitted to the court, and Tsabbar provides no persuasive evidence to the contrary.

In addition to opposing the motion to confirm the Referee's report, Tsabbar cross moves for various relief including an order (i) requiring the Balber firm to give an accounting of the monies and interest distributed, (ii) requiring the co-op to reimburse him for $67,188.45 for use [*6]and occupancy to the co-op, (iii) permitting him to recoup funds allegedly overpaid "in violation of tax law,"(iv) permitting him to file a new complaint against the co-op alleging conversion of his dental equipment.

Tsabbar's cross motion is without merit. As the co-op notes in its opposition, the court determined in its decisions dated July 11, 2005 and June 6, 2006 that the proceeds from the sale could be partially distributed. Furthermore, by letter dated July 24, 2006, the Balber firm provided Tsabbar with an accounting regarding the distribution of the funds in escrow consistent with Justice Madden's decision and order. That being said, however, following any further distributions of the proceeds in accordance with this decision and order, the co-op shall be required to provide to the court and Tsabbar a written summary of all distributions made from the sale proceeds.

Next, Tsabbar provides no legal or factual basis for his request that the co-op reimburse him $67,188.45 plus interest for what Tsabbar refers to as "use and occupancy." The $67,188.45 Tsabbar seeks is the amount directed to be paid in the court's decision and order dated June 2, 2006, from the proceeds of the sale for maintenance charges and electrical charges (exclusive of interest) owed by Tsabbar for the period between June 12, 2003 through December 31, 2005. As the court's decision was based on the evidence in the record, and Tsabbar provides no proof to the contrary, he is not entitled to reimbursement.

Moreover, Tsabbar's argument that he is entitled to a recoupment of certain amounts taken from the proceeds of the sale for maintenance on the grounds that such payments violated "the tax laws" is also unavailing. Notably, Tsabbar did not raise the issue in opposition to the co-op's argument that it was entitled to the maintenance due and owing from the proceeds of the sale. Additionally, Tsabbar does not provide a sufficient legal or factual basis for this argument, and the case law relied on by Tsabbar, which concerns the allocation of common charges and assessments between commercial and residential units under provisions of the condominium's by-laws is not on point. See e.g., Board of Managers of the 229 Condominium v. J.P.S. Realty Co., 308 AD2d 314 (1st Dept 2003); Lesal Associates v. Board of Managers of the Downing Court Condominium,309 AD2d 594 (1st Dept 2003).

Next, Tsabbar's request to file a new complaint against the co-op alleging conversion of his dental equipment is denied with leave to renew. Given the litigation history between the parties and Tsabbar's commencement of multiple, and often frivolous actions, and the $5,000 sanction imposed on Tsabbar by the Appellate Division, First Department, his request to commence such an action must be made by order to show cause and accompanied by proof including supporting affidavits, documents and evidence pertaining to the purported damage to his dental equipment.

The co-op also seeks to recover additional attorneys' fees related to the fee hearing in the amount of $37,166.08. When, as in this case, the lease agreement provides for the recovery of attorneys' fees, an award of reasonable attorneys' fees may properly include reimbursement for time spent by counsel seeking the fee award. See Senfeld v. I.S.T.A. Holding Co., 235 AD2d 345 (1st Dept 1997), lv dismissed, 91 NY2d 956 (1998); Kumble v. Windosr Plaza Co., 161 AD2d 259 (1st Dept), appeal dismissed, 76 NY2d 843 (1990). However, it cannot be determined on this record whether the claimed amount of attorneys' fees incurred during the hearing is reasonable and, unless an amount can be agreed upon by the parties, this issue must be referred to [*7]the Special Referee, and any fees incurred during that hearing shall be sought during the hearing before the Referee.

The co-op also seeks sanctions against Tsabbar, noting that the Special Referee recommended that Tsabbar be sanctioned for his conduct during the hearing. Although Tsabbar is admonished for his extraneous, offensive and unsubstantiated remarks during the hearing, the imposition of sanctions is denied at this time.

In view of the above, it is

ORDERED that motion to confirm the March 5, 2007 report of Special Referee Les Lowenstein is granted to the extent that he found that 1) the co-op should be awarded $37,500 for fees and legal services rendered on its behalf by Jeffrey Goldberg, Esq. in connection with the litigations brought by the Tsabbar in New York County, Queens County and the Federal actions all of which arose out of or under Tsabbar's adjudicated default under the lease and for the period commencing in July of 2004 through August 2006; (2) the co-op should be awarded interest upon Tsabbar's maintenance arrears in the amount of $22,562.77; and (3) the co-op should be awarded $41,235.14 for fees and legal services rendered on its behalf by the Kurzman firm after April 2006, in connection with its opposition to the writ of certiorari filed by Tsabbar with the United States Supreme Court, the Queens action and the Federal action, for a total amount of $101,297.91; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of respondent 17 East 89th Street Tenants, Inc. and against petitioner Zion Tsabbar in the amount of $101,297.91; and it is further

ORDERED that the Balber firm, as escrowee of the proceeds of the sale of the Apartment, shall disburse any sums remaining in the escrow account in full or partial satisfaction of the judgment; and it is further

ORDERED that the following the distribution directed by the immediately proceeding paragraph, the co-op shall provide the court and Tsabbar with a written summary of all distributions of the sale proceeds; and it is further

ORDERED that the issue of the amount of reasonable attorneys' fees and costs expended in the hearing to determine the amount of attorneys' fees, and any attorneys' fees and costs expended as a result of this reference is referred to Special Referee Les Lowenstein to hear report with recommendations; and is further

ORDERED that a copy of this order with notice of entry shall be served by November 1, 2007, with the Judicial Support Office (Room 311) to arrange a date for the reference to Special Referee Lowenstein; and it is further

ORDERED that the co-op's failure to timely comply with the immediately proceeding paragraph shall result in its waiver of its claim for attorneys' fees arising out of the hearing; and it is further

ORDERED that Tsabbar's cross motion is denied; and it is further

ORDERED that co-op's request for sanctions against Tsabbar is denied.

DATED: OCTOBER 2, 2007

J.S.C.