Richard Tosi,
Plaintiff,
against
Yorkshire Towers, etc., et ano,
Defendants.
|
CV-013955/2009
Savitt Law Firm PLLC
460 West 34th Street
New York, NY 10001
By: Richard P. Savitt, Esq.
For Defendant Yorkshire Towers GP CO., LLC
Smith & Krantz, LLP
122 East 42nd Street
New York, NY 10168
By: Jeremy J. Krantz, Esq.
Robert R. Reed, J.
This matter having come on before this Court for a hearing this date upon
defendants' application for an award of attorney's fees, legal expenses, costs and
disbursements, and, upon such hearing, sworn testimony having been taken and
documentary evidence having been received on the record, the Court now finds and
decides that defendants are entitled to an award of $25,879 for [*2]the reasonable value of their attorney's fees, legal expenses,
costs and disbursements incurred to date as a result of their involvement in this civil
action. Consequently, in view of this Court's prior Decision/Order herein, dated April 2,
2013, the Clerk is hereby directed to enter Final Judgment in favor of defendants and
against plaintiff in the amount of $38,527 [with (a) $9300 representing
compensatory damages for unpaid rent for the period from September through November
2008, after application of the security deposit to satisfy unpaid August 2008 rent; (b)
$3348 representing statutory interest calculated from the beginning of December
2008, and (c) $25,879 representing the reasonable value of defendants' attorney's
fees, legal expenses, costs and disbursements incurred, as demonstrated upon the hearing,
from the commencement of plaintiff's action through and including the hearing today
which started at or about 12:00 p.m. and concluded, after the lunch break, at or about
3:20 p.m.].
As expressed by the Court on the record, to which the parties are also
respectfully referred, the testimony and documentary evidence received at hearing well
established that defendants incurred the significant attorney's fees, legal expenses, costs
and disbursements presented herein because plaintiff aggressively and inefficiently
pursued this litigation over several years — with a substantial amount of writings
exchanged between counsel for the parties, multiple motions (including several for
restoration after dismissal), with at least 16 court dates, with a "full-blown" contentious
trial, and, finally, with additional dates for the fee hearing (including the first date for the
fee hearing on which plaintiff's attorney failed to appear without prior notice to opposing
counsel or the Court). The matter is notable for the fact that it is a former tenant that here
has been so doggedly pursuing return of a security deposit after having abandoned the
subject premises early before the conclusion of the lease without having obtained
written permission from the landlord to do so — and in contravention of the
express terms of the applicable lease. The matter is notable also in that such former
tenant evidently refused more than one overture to settle this matter on what to this Court
seems extremely favorable terms, to wit, defendants offered at least twice to return
plaintiff's security deposit and to discontinue its counterclaims with prejudice (once in
July 21, 2010 and then again at a final conference on the day the trial began). Plaintiff
stubbornly refused — evidently hoping to establish his entitlement to recover
attorney's fees upon presentation of his case. That gamble proved to be disastrous in light
of this Court's April 2, 2013 Decision/Order.
At the fee hearing, plaintiff's attorney sought to portray defense counsel's
litigation conduct as vexatious or wasteful, and, thus, not meriting full reimbursement or
credit for all the fees, costs, disbursements or other expenses incurred. Plaintiff's
attorney, however, could not identify a single instance in this action in which any judge
had held defendants in default, issued any order of preclusion against defendant, or
otherwise sanctioned defendant or defense counsel. Indeed, the Court's own view of
defense counsel's conduct in this case is that, while it has been vigorous and energetic, it
has been in every respect professional, and, in fact, often has been remarkable for its
restraint. This Court carefully reviewed defendants' litigation file, specified
correspondence, and billing records admitted as exhibits at the fee hearing (including
over the lunch break on the day of the hearing), and nothing in them seemed untoward.
Thus, the Court is satisfied that the fees, expenses, costs and disbursements sought by
defendants herein are [*3]reasonable, and that defendants
are entitled to recover therefor.
In its Decision/Order, dated April 2, 2013, this Court determined as follows:
(i) the complaint herein should be and are dismissed in its entirety, (ii) defendants are
entitled upon their third counterclaim to recover a monetary award in compensation for
damages through the end of November 2008, (iii) defendants are entitled upon the fourth
counterclaim to an award of attorney's fee, legal expenses, costs and disbursements under
the terms of the applicable lease, and (iv) the first and second counterclaims should be
dismissed. The Clerk shall enter Judgment accordingly.
NOW, THEREFORE, the Clerk is hereby directed to enter Final Judgment
in favor of defendants and against plaintiff in the amount of $38,527.
This constitutes the Decision/Order of this Court.
Dated: May 7, 2013
_________________________________________________________
ROBERT R. REED
JUDGE OF THE CIVIL COURT OF THE CITY OF NEW YORK