FILED: KINGS COUNTY CLERK 03/02/ :21 AM INDEX NO /2013 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 03/02/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS x HENRY PEZZO Index No: /13 NOTICE OF APPEAL Plaintiff, 26 SEVENTH AVENUE SOUTH LLC and JOHN DOES 1 THROUGH 10 Defendants, x. PLEASE TAKENOTICE that the above-named Defendant, 26 SEVENTH AVENUE SOUTH LLC hereby appeals to the Supreme Court of the State of New York, Appellate Division, Second Department, from the Decision and Order (Justice C.) rendered against it and in favor of Plaintiff and entered in the office of the County Clerk, Kings County on February 15, 2018, which Decision and Order granted the Plaintiff's for attorneys fees in ite entirety, and from each and every part thereof. Dated: New York ew York February 2018 / Dean Yours, Dreiblatt etc., ROSE & ROSE Attorneys for Defendant 13th 291 Broadway, floor New York, New York (212) against of 13

2 i Pupreme Court of tip +tate af Pehr park ppellate fihisian : $ecanh bhicial epartment Form A - Request for Appellate Division Intervention - Civil See of the rules of this court for directions on the use of this form (22 NYCRR 670.3). e ~ ~ ~ ~ a e ~ a"t e '":p~~"'g~ '~ac+a s' 's'~u C ~ ~ ~ ~ ~ ~ ~ ~ Henry Pezzo, r Due No e of AppuWed -against- Iii+)4~9)@pleat';.-:,,~': Seventh Avenue South LLC and John Does 1 through 10. Defendants.. - O CPLR.article 78 Proceeding 0 Transferred Proceeding Civil Action 0 Special Proceeding Other Appeal O CPLR 5704 Review CPLR article 75 Arbitration 0 Habeas Corpus Proceeding 0 Original Proceeding ~ ~ ~ ~ ~ ~ A 8 ',:, '. ' +t ' rae% ii': 01 Freedorn of Information Law 0 1 Adoption 0 1 Discipline 01 Assault, Battery, False O 2 Human Rights O 2 Attorney's Fees 0 2 Jail Tirne Calculation Imprisonrnent 3 Licenses O 3 Children - Support 0 3 Parole 0 2 Conversion 4 Public Employment 0 4 Children - Custody/Visitation 0 4 Other O 3 Defamation 5 Social Services 0 5 Children - Terminate Parent- 0 4 Fraud O 6 Other al Rights ', "'@+~~<'-";e.0 5 Intentional Infliction of O.6 Children - Abuse/Neglect 0 1 Condemnation Emotional Distress O 7 Children - JD/PlNS 0 2 Determirle Title 0 6 Interference with Contract 1 Partnership/Joint Venture 0 8 Equitable.Distribution 0 3 Easernents 0 7 Malicious Prosecution/ 2 Business 0 9 EExclusive Occupancy of 0 4 Environmental Abuse of Process 3 Reilglous Residence 0 5 Liens 0 8 Malpractice 4 Not for Profit 0 10 Expert's Fees Q 6 Mortgages 0 9 Negligence 6 Other 0 11 Maintenance/Allmony 0 7 Partition 0 10 Nuisance 12 Marital Status 0 8 Rent 0 11 Products Liability, O 13 Paternity 0 9 Taxation 0 12 Strict Liability 1 Brokerage 0 14 SPousal Support O 10 Zoning 0 13 Trespass and/or Waste 2 Corhmercial Paper 0 15 Othe.r 911 Other Q 14 Other 3 Construction 4 Employment O 5 Insurance 0 1 Constructive Trust 0 1 City of Mount Vernon 0 1 Accounting V6 Real Property O 2 Debtor & Creditor Charter Ui 120, 127-f, or 02 Discovery 7 Sales 0 3 Declaratory Judgment Probate/Adrninistration 8 Secured 04 Election Law 0 2 Eminent Domain Proced- 0 4 Trusts 9 Other 0 5 Notice of Claim ure Law li Other O 6 Other 0 3 General Municipal Law Labor Law li Public Service Law Farm A RADI Civil or 170. O 6 Other 9 2 of 13

3 s s e Instructions: Fill in the names of the attorneys or firms of attorneys for the provided. respective parties, If this form is to be filed with the notice of petition or order In the event that a litigant represents herself or himself, the box to show cause by which a special proceeding is to be commenced in the marked "Pro Sa" must be checked and the appropriate information for that Appellate Division, only the name of the attorney for the petitioner need be litigant must be supplied in the spaces provided. Attorney/Firm Name: Jeffrey T. Yick, Tuttle Yick LLP Address: 220 East 42nd Street, 29th Floor City: New York state: NY ZiP: Telephone No,: Attorney Type: O Retained O Assigned 0 Governrnent 0 Pro Se O Pro Hac Vice c).' Party or Parties Represented (set forth party number(s) from table above or from Form C 1 Attorney/Firrn Name: Dean Dreiblatt, Rose & Rose Address: 291 Broadway, 13th Floor City: New York State: NY ZIP: Telephone No.: Attorney Type; 6 Retained 0 Assigned 0 Government 0 Pro Se 0 Pro Hac Vice C)I' Party or Parties Represented (set forth party numberlal from table above or from Form C): 2 Attorney/Firm Name: Address: City: State: Zip: Telephone No,: Attomey Type: 0 Retained 0 Assigned O Government 0 Pro Se O Pro Hac Vice Ol' Party or Parties Represented (set forth party numberls] from table above or from Form C) Attomey/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: O Retained 0 Assigned 0 Government 0 Pro Se O Pro Hac Vice Party or Parties Represented (set forth party numberts1from table above or from FormC) Attorney/Firm Name: Address: City: State: Zip: Telephone No,: Attorney Type: 0 Retained 0 Assigned 0 Government 0 Pro Se O Pro Hac Vice..... Party or Parties Represented (set forth.party numberls from table above or from Form C) Attomey/Firm.Name: Name, Address: City; State: Zip: Telephone No,: Attorney Type: 0 Retained 0 Assigned O Government.00 Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s)from table above or from FormC): I 'lf ' I 3 of 13

4 I Paper Appealed From {check one only): O Arnended Decree O Determination X) Order O Resettled Order O Arnended Judgment O Rnding O Order & Judgment O Ruling O Arnended Order O interlacutary Decree O Partial Decree O Other (specify): O Decision O interlocutary Judgment O Resettled Decree O Decree O Judgment O Resettled Judgment Court: New York State Supreme Court County: Kings Dated: February 05, 2018 Entered: February 15, 2018 Judge (name in fuli):. Carl J. Londicino Ir¾No Stage: O Interlocutory )if Final O Post-Final Trial: O Yes 5 bio If Yes: O Jury Q Non-Jury Are any unperfected appeals pending in this case? 0 Yes + bio. if yes, do you intend to perfect the appeal or appeals covered by the annexed notice of appeal with the prior appeals? O Yes O No. Set forth the Appellate Division Cause Number(s) of any prior, pending, unperfected appeals: " e. ~..e Comrnenced by: O Order to Show Cause O Notice of Petition O Writ of Rabeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Divisiont ~ ~ ~ ~ 0 4 Court: County: Judge [name in full): Order of Transfer Date: ~ ~ e ~ ~ ~ e. ~, Court: County: Judge (name in full)1 Dated: e i ~ ~ ~ e ' e ~ ~ ' r ~. e. t «. I Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of the proceeding, If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. Plaintiff' Decision / Order granted Plaintiff's amount of $24, motion for attorneys fees in the Amount: If an appeal is from a money judgment, specify the amount awarded, Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR!5704 review. 1. Whether Plaintiff was the prevailing party under the circumstances of this case. 2. Whether Plaintiff was entitiled to an award of attorneys fes of $24, where the plaintiff recovered only $6,300 on its claim and where Plaintiff did not prevail on most of its causes of action. 3. Whether Plaintiff is entitled to attorneys fees expended on its unsuccessful causes of action, as well as its one cause of acation for $6,300> 4 of 13

5 Iäsues Continued months' 4. In the alternative to #2, whether charging four rent in the first month constitutes a rent overcharge for that first month, to which the treble damages and attorneys fees penalty under the Rent Stabilization Law would apply. 5. In the alternative to #2, whether defendant landlord is subject to punitive damages for wilfully violating the Rent Stabilization Law with respect to a security overcharge.' deposit and advanced rent overcharges 6. Whether defendant's first counterclaim for rent after the expiration of the lease should have been dismissed when it was undisputed that plaintiff moved out prior to the end of the lease as required by the lease. 7. Whether defendant's second counterclaim for damage should have been dismissed since defendant failed to allege anything more than bare conclusory assertions of damage to support its claim. L 8 's' ~. ~.Instructions Instruction: Fill in the name of each party to.the action or proceeding, one. Exampes of y party s original status. include: plaintïff, defendant per jine., If this form is to be filed for an appeal, indicate the status of the petitioner, respondent, claimant, defendant third-party plaintiff, thifdgatty party in the coutt of original instance grid his, her, or its status in this 'court, if defendant, and intenenor. Exafnples of..aa party's Appellate Division status any If this form is to be filed for a proceeding commenced in this court; fill in include: appellanta respondent, appellant-respondent, respondent-appellant, only the partfs.narneánd his, her er its status Iri thik court petitioner, andintervengr, No. Party Narne Original Status Appellate Division Status s 1 Henry Pezzo Plaintiff Respondent Seventh Avenue South LLC Defendant Appellant B 'I of 13

6 NYSCEF FILED: DOC. KINGS NO. 94 INDEX COUNTY CLERK 02 /15 N /2013 / 2018 RECEIVED NYSCEF: 03/02/2018 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 02/23/2018 At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at O Civic Center, Brooklyn, New York, on the 5* P R E S E N T: day of February, 20I8. HON. CARL J. LANDICINO, Justice. - --, : X HENRY PEZZO, Index No.: / against - Plaint/ff, DECISION AND ORDER 26 SEVENTH AVENUE SOUTH, LLC, Motion Sequence 84 and JOHN DOES 1 through 10 (fictitious names), Defendants )( Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: NoticeofMotion/Cross Motion and Papers Numbered Affidavits (Affirmations) Annexed ,..., /2, GQ C3 Opposing Affidavits (Affirmations) CD ReplyAffidavits (Affirmations) cn xa 2e C3 Upon the foregoing papers, and after oral argument, the Court finds as foll s: The Plaintiff Hemy Pezzo (hereinafter "the Plaintiff") has commenced this action claiming causes of action in relation to alleged rent overcharge of a security deposit, a rent overcharge in relation to an advanced payment of rent, a breach of a lease for failing to return the Plaintiff's security deposit, a breach of General Obligations Law 7-103, conversion and a cause of action based upon a breach of fiduciary duty. In the complaint, the Plaintiff alleges he and the Defendants" Defendant 26 Seventh Avenue South, LLC, (hereinafter "the Defendants") had previously "Lease" entered into a lease agreement for a rent stabilized apartment (the "Lease") and that the Lease between the parties required a security deposit that was three times the sum of the monthly rent. The Plaintiff also alleges that the Plaintiff vacated the subject apartment in July 31, 2013, and that the De endant refused to return the security deposit thereafter. Pirl.Sq Pld.Sq m=- "'/- <v'- W~g ~L7 1 or: of 6 6 of 13 I

7 NYSCEF F ILED DOC. : KINGS NO. 94 INDEX NO. CÖUNTY CLERK 02 / /2013 / 2018 RECEIVED NYSCEF: 03/02/2018 NySCEF DOC. NO. 89 RECEIVED NYSCEF: 02/23/2018 The Plaintiff now moves (Motion Sequence #4) for an order pursuant to RPL 234 awarding the Plaintiff attorney's fees in the amount of $24,220,00. On October 11, 2017, that aspect of the Plaintiff's motion made pursuant to CPLR 3217(b) for voluntary discontinuance of the Plaintiff's remaining claims was granted pursuant to a "So Ordered" stipulation of the parties. The Plaintiff!argues that the Lease explicitly provides that the Landlord is entitled to recover from Plaintifif "legal fees and disbursements for legal actions" and that RPL 234 makes such a provision reciprocal. What is more, the Plaintiff argues that his application for attorney's fees should be granted because he is entitled to such fees as the prevailing party in the instant proceeding. ifhe Plaintiff argues that the primary purpose of the instant action was related to the Defendant's failure to return the Plaintiff's security deposit, and that the Plaintiff was awarded summary judgment for the return of the entire security deposit without offset and a complete dismissal of the Defendant's counterclaims as part of the Decision and Order of the Appellate Division, S¾cond Judicial Department, dated October 6, The Defendant opposes the motion. Specifically, the Defendant argues that the Plaintiff s application for attorney's fees should be denied since the Plaintiff is not the "prevailing party" pursuant to KPL 234. The Defendant argues that the Plaintiff is not the prevailing party because notwithstanding his nine causes of action contained in his complaint, the Plaintiff will recover only $6, in relation to the third cause of action. Moreover, the Defendant argues that the causes of adtion in relation to the security deposit sought much less in damages than the Plaintiff's claim for rent overcharge, which sought the sum of $18, The Defendant argues that as a result it is actually the prevailing party in this proceeding given that it was able to defend against eight of Plaintiff's nine causes of action. Altl ough a party to a proceeding is ordinarily not entitled to attorney's fees, an exception to this rule arises where there is an agreement between the parties or such fees are permitted by 2 2 of 6 7 of 13

8 NYSCEF F I LED DOC. : KNO. INGS94 INDEX COUNTY CLERK 02 / 15 NO /2013 / RECEIVED NYSCEF: 03/02/2018 NySCEF poc. NO. 89 RECEIVED NYSCEF( 02/23/2018 statute. See Degregorio v. Richmond Italian Pavillion, Inc., 90 A.D.3d 807, 808, 935 N.Y.S.2d 70, 72 [2"d Dept, 2011]. RPL 234 provides in pertinent part that "Whenever a lease of residential property shall provide that in any attorneys' action or summary proceeding the landlord may recover fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the attorneys' reasonable fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by landlord against the tenant arising out of the lease, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the teqant." tet (Emphasis added). The Lease between the parties in the instant proceeding at Paragraph 20A provides that "you must reimburse Owner for any of the following fees and expenses incurred by owner" and Subparagrapy (5) thereof provides for "[a]ny legal fees and disbursements for,legal actions or proceedings brought by Owner against You because of a Lease default by You or defending lawsuits brought against Owner because of your actions..." Accordingly, there is an implied reciprocal right of the Plaintiff pursuant the above provisions of RPL 234 and as a result an implied covenant applies in this case. See Casamento v. Juaregui, 88 A.D.3d 345, 350, 929 N.Y.S.2d 286, 289 [2nd Dept, 2011]. ' "In this regard, the Court of Appeals has stated that '[o]rdinarily, only a prevailing party is entitled to attorney's fees '" DKR Mortg. Asset Tr. 1 v. Rivera, 130 A.D.3d 774, 776, 14 N.Y.8.3d 414, 416 [2nd Dept, 2015], quoting Nestor v. McDowell, 81 N.Y.2d 410, 615 NiE.2d 3 3 of 6 8 of 13

9 NYSCEF F ILED DOC. : KINGS NO. 94 INDEX NO COUNTY CLERK 02 /15 / 2 0 RECEIVED NYSCEF: 56 03/02/ ) NySCEF DOC. NO. 89 RECEIVED NYSCEF: 02/23/2018 \". 991 [1993]. "To be considered a prevailing party, a party must be successful with respect to the central relief sought." Fatsis v. 360 Clinton Ave. Tenants Corp., 272 A.D.2d 571, 571, 709 N.Y.S.2d 421,, 422 [2nd Dept, 2000]. Where a party has a right to recover an attorney's fee "the award of attorneys' fees, whether pursuant to agreement or statute, must be reasonable and not excessive." $MP Capital Corp. v. Victory Jet, LLC, 139 A.D.3d 836, 839, 32 N.Y.S.3d 231, 235[2nd Dept, 2016]. "In determining what is reasonable compensation for an attorney, the court may conside a number of factors including 'the time spent, the difficulties involved in the matters in which the services were rendered, the nature of the services, the amount involved, the professional standing of the counsel, and the results obtained'" Granada Condo. I v. Morris, 225 A.D.2d 520, 639 N.Y.S.2d 91 [2"d Dept, 1996], quoting In re Potts' Estate, 213 A.D. 59, 209 N.Y.S. 655 dapp. Div.), affd sub nom. In re Potts, 241 N.Y. 593, 150 N.E. 568 [I925]. Turning to )234,: the merits of the Plaintiff's motion for attorneys fees pursuant to RPL 234, the Court finds that the Plaintiff's application is granted. The Plaintiff was successful in this proceeding, as he succeeded in having his central claim relating to the security deposit resolved in his favor by summary judgment. In their Decision 4 Order dated October 6, 2016 the Appellate Division Second Judicial Department (Pezzo v. 26 Seventh Ave. S., LLC, 144 A.D.3d 778, 41 N.Y.S.3d 62 [2nd Dept, 2016]) held that: "[T]he Supreme Court should have granted that branch of the t nant's motion which was for summary judgment on the third cause of dction. action. The tenant established his prima facie entitlement to judgment as a of law on the cause of action alleging breach of the lease for failing to return the security deposit (see General Obligations Law 7-103). The evidence established that the tenant paid the landlord a security deposit and vacated tacated the apartment a few days before the lease terminated. In opposition, he landlord failed to raise a triable issue of fact. Contrary to the landlord's ontention, the tenant's failure to return the keys prior to the expiration of the lease did not show a failure to surrender (see generally First Natl. City Bank v. Wall St. Leasing Corp., 80 Mis. 2d 707, 709 [Civ Ct, New York ounty 1974]). Furthermore, there was no provision in the lease requiring 4 of 6 9 of 13

10 NYSCEF DOC. NO. 94 F I LED : K INGS COUNTY CLERK RECEIVED INDEX NYSCEF: NO / /02/ / 15 / NTS.CEF DOC. NO. 89 RECEIVED NYSCEF 02/23/2018 tl e tenant to notify the landlord that he was vacating the apartment. In fact, "Tenant Cooperation Rider" stated that such notice was not required. Moreover, the landlord failed to submit evidentiary proof that the tenant damaged the apartment. The Supreme Court also erred in denying that branch of the tenant's motion which was for summary judgment dismissing the landlord's counterclaims. In opposition to his prima facie showing of entitlement to summary judgment, the landlord failed to raise a triable issue of fact (see Zuckerman v. City ofnew York, 49 NY2d 557)." As a result, the Court finds that Plaintiff is entitled to an award of attorneys' fees under RPL 234 as the prevailing party herein. The Plaintiff's success on his Third Cause of Action, in conjunction with the Appellate Division's dismissal of the Defendant's counterclaims left eight causes of action outstanding. However, of the eight remaining causes of action, six involve ancillary claims, such as Breach of the Lease for Failing to Return Security Deposit, Breach of General Obligations Law 7-103, Conversion, Breach of Fiduciary Duty, Trust Fund Violation ' 'l and Money Elad and Received all directly related to the security deposit. See LeVine v. Catskill Reg'l Off-Tra k Betting Corp., 57 A.D.3d 624, 626, 871 NJ.S,2d 191, 193 [2nd Dept, 2008]. What is more, the Court finds that the attorney's fees in the amount of $24,220.00, sought by the Plainti f, were in fact reasonable given the Defendant's delay and the.appellate practice involved. The Plaintiff's Affidavit (Exhibit "F") supports the contention that the Plaintiff would not have initiated the action if the security deposit had been returned. The Plaintiff attaches (Exhibit "G") the engagement letter that explains the cost of legal services provided by his counsel, the initial correspondence (Exhibits "H" and "I") with the Defendant wherein the Plaintiff sought to avoid litigation, and invoices (Exhibit "K") that specifically detail the work performed by flaintiff's counsel. Beginning in 2013, Plaintiff's counsel engaged in motion practice that required document preparation and Court appearances. Appellate practice also required extensive preparation and dozens of billable hours as a result. Accordingly, the 5 5 oc 6 10 of 13

11 NYSCEF DOC. NO. 94 COUNTY' RECEIVED (F I LE D : K ING S COUNTY CLERK 02 / 15 / 2 INDEX NYSCEF: NO / /02/ N,Y CEFt DOC. NO. 89! RECEIVED NYSCEF: 02/23/2018 Plaintiff's motion is granted, and the Plaintiff is awarded reasonable attorney's fees together with reasonable disbursements totaling $24,220.00, Based on the foregoing, it is hereby ORDERED as follows: The 15laintiff's motion is granted. Plaintiff is awarded the sum of $24,220,00 as and for reasonable attorneys' fees and disbursements in relation to the instant proceeding, The foregoing constitutes the Decision and Order of the Court Date: Februa y 5, 2018 ENTEk: Óarl. J. Laddicino J.S.C Cga / 6 6 of 6 11 of 13

12 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X HENRY PEZZO Index No: /13 AFFIRMATION OF SERVICE Plaintiff, -against- 26 SEVENTH AVENUE SOUTH LLC and JOHN DOES 1 THROUGH 10 (fictitious names) MANAGEMENT, INC. Defendants, X DEAN DREIBLATT, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following to be true pursuant to CPLR 2106 and under the penalties of perjury: 1. I am over the age of 18. I am a resident of the State of New York, and I am not party to this action. 2. On March 2, 2018, I served the foregoing Notice of Appeal and RADI by electronically filing same and by sending a copy by regularly mail to the Plaintiff's attorneys at the address set forth below: TUTTLE YICK LLP Attorneys for Plaintiff 220 East 42nd street, 29th poor New York, NY (646) of 13

13 Dated: New York, New York March 2, 2018 DEAN DREmLATT l. 13 of 13