Preview
FILED: NEW YORK COUNTY CLERK 05/04/2023 10:54 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No.: 161105/2021
FIFTH PARTNERS LLC,
AFFIRMATION IN SUPPORT OF
Plaintiff, MOTION FOR ENTRY OF A
-against-
SUPPLEMENTAL JUDGMENT
PUNCH HOUSE FLATIRON LLC, JOSEPH W.
FOLEY and NADA VASILIJEVIC,
Mot. Seq. No. 002
Defendants.
DAVID B. ROSENBAUM, an attorney duly admitted to practice law in the State of
New York, hereby affirms under penalty of perjury as follows:
1. I am a member of BORAH, GOLDSTEIN, ALTSCHULER, NAHINS &
GOIDEL, P.C., attorneys for the plaintiff FIFTH PARTNERS LLC (the “Plaintiff”), the
owner and landlord of the ground floor retail space in the building located at 19 West 21st
Street, New York, New York 10010 (the “Premises”). As such, I am fully familiar with the
facts and circumstances set forth herein.
2. I submit this affirmation in support of Plaintiff’s motion seeking a
supplemental judgment for its reasonable attorneys’ fees, as directed by the Hon. Gerald
Lebovits, J.S.C., in his Decision and Order on Motion dated April 26, 2023 (the
“Decision”), granting Plaintiff summary judgment. A copy of the Decision is attached as
Exhibit “A” and is at NYSCEF Doc. No. 44.
3. Briefly, this case sought monetary damages arising out of a breach of lease
claim against defendant PUNCH HOUSE FLATIRON LLC (“Punch House” or “Tenant”),
and a breach of guaranty claim against defendants JOSEPH W. FOLEY ("Guarantor" or
"Foley"), and NADA VASILIJEVIC (“Co-Guarantor” or “Vasiljevic”). (Foley and Vasiljevic
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shall be referred to as “Guarantors,” and Tenant, Foley, and Vasiljevic shall be referred
to as “Defendants.”)
Procedural History
4. Plaintiff commenced this action by service of a summons and complaint (the
“Complaint”). (NYSCEF Doc. No. 1). Defendants filed an amended answer with
counterclaims on February 11, 2022. (NYSCEF Doc. No. 20). Plaintiff filed its reply to
counterclaims on February 22, 2022 (NYSCEF Doc. No. 21).
5. Plaintiff filed its motion for summary judgment, motion sequence no. 001,
on June 27, 2022. (NYSCEF Doc. Nos. 22-36). Defendants filed opposition papers on
July 11, 2022. (NYSCEF Doc. Nos. 38-39). Plaintiff filed its reply papers on July 18, 2022.
(NYSCEF Doc. Nos. 40-43).
6. On April 26, 2023, the Court issued the Decision, wherein the Court
ordered, in relevant part, that:
(a) plaintiff’s motion for summary judgment on the complaint
and to dismiss defendants’ affirmative defenses and
counterclaim is granted;
(b) plaintiff is awarded judgment against defendants, jointly
and severally, for $232,017.95, with interest running from the
reasonable intermediate date of June 1, 2022, plus costs and
disbursements as taxed by the Clerk upon submission of an
appropriate bill of costs and
(c) that plaintiff may enter a supplemental judgment for the
amount of its reasonable attorney fees, with the amount of
those fees to be determined by motion brought on notice.
(Exhibit “A” or NYSCEF Doc. No. 44)
7. Plaintiff now moves, pursuant to the Court’s Decision, seeking an award for
its attorneys’ fees and costs incurred herein through February 28, 2023, totaling
$21,190.71.
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Plaintiff Should Be Awarded Its Legal Fees
8. Attached as Exhibit “B” are the legal invoices billed by Borah to Petitioner
for legal services rendered herein. Attached as Exhibit “C” is a legal fees chart, amplifying
the legal fees invoices in Exhibit “B”. The chart is not a business record but was prepared
for illustration purposes demonstrating the hours expended and amounts billed as
reflected in the invoices attached as Exhibits “B”, which is a business record as explained
herein. Through February 28, 2023, Borah billed, and Plaintiff incurred, legal fees totaling
$21,190.71.
9. Every case worked on is given an internal billing number that is associated
with the client/matter. All work performed for the case is billed and tracked under that
specific client/matter number. Here, the client number is HU1324 and the matter number
assigned to the case is S07872 (See Exhibit “B”). Borah rendered legal services, including
disbursements, in this Proceeding totaling $21,190.71 (Exhibits “B” and “C”) under the
case number.
10. The billing procedure in the firm is as follows: an attorney or paralegal
performing legal services records his/her time on a billing time sheet, which billing
information includes a description of the task, the amount of time spent on the task and
the client/matter assigned to the case for which the task was performed. This billing
information is inputted into our office computer system. That information is ultimately
released to our billing department, which generates the legal bills in Exhibits “B”.
11. The attorneys’ time sheets, the printout of that time after it is inputted into
my firm’s billing computer software, and the bills themselves are generated monthly. The
bills are prepared by my firm in the ordinary course of the firm’s business. It is the firm’s
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regular business practice to record, input and generate such bills. It is also my duty as a
member of the firm to maintain these billing records and do so in the normal course of the
duties and responsibilities. All the entries were made at the time of the act or within a
reasonable time thereafter. The annexed bills at Exhibits “B” cover the billing period of
September 2021 through February 2023, each of which was made contemporaneous with
the event.
12. The attorneys and/or paralegals that worked on this case are employed by
Borah and are not Plaintiff’s “in-house counsel.” I supervised and worked on this case
together with Joshua Nadelbach, Esq. No other attorneys worked on this case except for
secretaries that assisted with ministerial tasks.
13. Joshua Nadelbach was admitted to the New York State bar in 2016. He was
elevated from an associate to a Partner in February 2021 and works in the firm’s
commercial and supreme court divisions. Since being admitted in 2016, Mr. Nadelbach
has worked exclusively in the real estate area.
14. I was admitted to the New York State bar in 1985. I am a senior partner with
Borah and have close to thirty- eight (38) years of real estate litigation experience. I
currently serve as co-chair of Borah’s Commercial and Supreme Court divisions.
15. I have lectured and given CLE courses on various topics related to
commercial real estate litigation and have published articles in the area, am a member of
the NYSBA Real Property Section, the NYCLA’s Civil Court Committee and New York
Academy of Trial Lawyers, and am also a National Academy of Continuing Legal
Education certified faculty member.
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16. The hourly billing rates charged by Borah herein are reasonable, customary,
and comparable to attorneys of similar experience. Attached as Exhibit “D” are decisions
on prior attorneys’ fee hearings finding that the time and billing for legal services rendered
by Borah are both reasonable and appropriate.
17. Plaintiff is a long-time client of Borah and discounted rates were thus given.
The rate billed for my time was a courtesy rate as my hourly rate is $550.00 per hour.
18. I opened this matter and dictated the pleadings to be prepared. I reviewed
and edited all papers that were filed in this case. It was my duty as the senior partner
assigned to this case and client to supervise and manage the litigation.
19. Together with Mr. Nadelbach, we successfully achieved what the client had
requested that we accomplish, that is, to obtain summary judgment awarding Plaintiff its
lease damages and attorneys’ fees.
20. The work performed and hours billed were necessary to achieve the
ultimate outcome: summary judgment resulting in a judgment amount of $232,017.95
together with interests and costs.
21. The Court is respectfully referred to the accompanying memorandum of law
explaining Plaintiff’s entitlement to the relief sought. The Court should grant Plaintiff’s
motion and award it a supplemental judgment against Defendants, jointly and severally,
for $21,190.71.
22. I hereby certify that, to my knowledge, information and belief, formed after
an inquiry reasonable under the circumstances, the presentation of the attached papers
and the contentions therein are not frivolous as defined in 22 NYCRR § 130-1.1(c).
WHEREFORE, Plaintiff requests an Order granting its motion in its entirety.
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NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/04/2023
Dated: New York, New York
May 3, 2023
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CERTIFICATION
(of word count)
I, Joshua Nadelbach, the attorney filing the foregoing Affirmation, hereby certify
that the document is in compliance with 22 N.Y.C.R.R. § 202.8-b, containing a total of
1,287 words, as counted by the word-processing program.
Dated: New York, New York
May 3, 2023
___________________________
JOSHUA NADELBACH, ESQ.
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Preview
FILED: NEW YORK COUNTY CLERK 05/04/2023 10:54 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 161105/2021 FIFTH PARTNERS LLC, AFFIRMATION IN SUPPORT OF Plaintiff, MOTION FOR ENTRY OF A -against- SUPPLEMENTAL JUDGMENT PUNCH HOUSE FLATIRON LLC, JOSEPH W. FOLEY and NADA VASILIJEVIC, Mot. Seq. No. 002 Defendants. DAVID B. ROSENBAUM, an attorney duly admitted to practice law in the State of New York, hereby affirms under penalty of perjury as follows: 1. I am a member of BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL, P.C., attorneys for the plaintiff FIFTH PARTNERS LLC (the “Plaintiff”), the owner and landlord of the ground floor retail space in the building located at 19 West 21st Street, New York, New York 10010 (the “Premises”). As such, I am fully familiar with the facts and circumstances set forth herein. 2. I submit this affirmation in support of Plaintiff’s motion seeking a supplemental judgment for its reasonable attorneys’ fees, as directed by the Hon. Gerald Lebovits, J.S.C., in his Decision and Order on Motion dated April 26, 2023 (the “Decision”), granting Plaintiff summary judgment. A copy of the Decision is attached as Exhibit “A” and is at NYSCEF Doc. No. 44. 3. Briefly, this case sought monetary damages arising out of a breach of lease claim against defendant PUNCH HOUSE FLATIRON LLC (“Punch House” or “Tenant”), and a breach of guaranty claim against defendants JOSEPH W. FOLEY ("Guarantor" or "Foley"), and NADA VASILIJEVIC (“Co-Guarantor” or “Vasiljevic”). (Foley and Vasiljevic 1 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2023 10:54 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/04/2023 shall be referred to as “Guarantors,” and Tenant, Foley, and Vasiljevic shall be referred to as “Defendants.”) Procedural History 4. Plaintiff commenced this action by service of a summons and complaint (the “Complaint”). (NYSCEF Doc. No. 1). Defendants filed an amended answer with counterclaims on February 11, 2022. (NYSCEF Doc. No. 20). Plaintiff filed its reply to counterclaims on February 22, 2022 (NYSCEF Doc. No. 21). 5. Plaintiff filed its motion for summary judgment, motion sequence no. 001, on June 27, 2022. (NYSCEF Doc. Nos. 22-36). Defendants filed opposition papers on July 11, 2022. (NYSCEF Doc. Nos. 38-39). Plaintiff filed its reply papers on July 18, 2022. (NYSCEF Doc. Nos. 40-43). 6. On April 26, 2023, the Court issued the Decision, wherein the Court ordered, in relevant part, that: (a) plaintiff’s motion for summary judgment on the complaint and to dismiss defendants’ affirmative defenses and counterclaim is granted; (b) plaintiff is awarded judgment against defendants, jointly and severally, for $232,017.95, with interest running from the reasonable intermediate date of June 1, 2022, plus costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs and (c) that plaintiff may enter a supplemental judgment for the amount of its reasonable attorney fees, with the amount of those fees to be determined by motion brought on notice. (Exhibit “A” or NYSCEF Doc. No. 44) 7. Plaintiff now moves, pursuant to the Court’s Decision, seeking an award for its attorneys’ fees and costs incurred herein through February 28, 2023, totaling $21,190.71. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2023 10:54 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/04/2023 Plaintiff Should Be Awarded Its Legal Fees 8. Attached as Exhibit “B” are the legal invoices billed by Borah to Petitioner for legal services rendered herein. Attached as Exhibit “C” is a legal fees chart, amplifying the legal fees invoices in Exhibit “B”. The chart is not a business record but was prepared for illustration purposes demonstrating the hours expended and amounts billed as reflected in the invoices attached as Exhibits “B”, which is a business record as explained herein. Through February 28, 2023, Borah billed, and Plaintiff incurred, legal fees totaling $21,190.71. 9. Every case worked on is given an internal billing number that is associated with the client/matter. All work performed for the case is billed and tracked under that specific client/matter number. Here, the client number is HU1324 and the matter number assigned to the case is S07872 (See Exhibit “B”). Borah rendered legal services, including disbursements, in this Proceeding totaling $21,190.71 (Exhibits “B” and “C”) under the case number. 10. The billing procedure in the firm is as follows: an attorney or paralegal performing legal services records his/her time on a billing time sheet, which billing information includes a description of the task, the amount of time spent on the task and the client/matter assigned to the case for which the task was performed. This billing information is inputted into our office computer system. That information is ultimately released to our billing department, which generates the legal bills in Exhibits “B”. 11. The attorneys’ time sheets, the printout of that time after it is inputted into my firm’s billing computer software, and the bills themselves are generated monthly. The bills are prepared by my firm in the ordinary course of the firm’s business. It is the firm’s 3 3 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2023 10:54 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/04/2023 regular business practice to record, input and generate such bills. It is also my duty as a member of the firm to maintain these billing records and do so in the normal course of the duties and responsibilities. All the entries were made at the time of the act or within a reasonable time thereafter. The annexed bills at Exhibits “B” cover the billing period of September 2021 through February 2023, each of which was made contemporaneous with the event. 12. The attorneys and/or paralegals that worked on this case are employed by Borah and are not Plaintiff’s “in-house counsel.” I supervised and worked on this case together with Joshua Nadelbach, Esq. No other attorneys worked on this case except for secretaries that assisted with ministerial tasks. 13. Joshua Nadelbach was admitted to the New York State bar in 2016. He was elevated from an associate to a Partner in February 2021 and works in the firm’s commercial and supreme court divisions. Since being admitted in 2016, Mr. Nadelbach has worked exclusively in the real estate area. 14. I was admitted to the New York State bar in 1985. I am a senior partner with Borah and have close to thirty- eight (38) years of real estate litigation experience. I currently serve as co-chair of Borah’s Commercial and Supreme Court divisions. 15. I have lectured and given CLE courses on various topics related to commercial real estate litigation and have published articles in the area, am a member of the NYSBA Real Property Section, the NYCLA’s Civil Court Committee and New York Academy of Trial Lawyers, and am also a National Academy of Continuing Legal Education certified faculty member. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2023 10:54 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/04/2023 16. The hourly billing rates charged by Borah herein are reasonable, customary, and comparable to attorneys of similar experience. Attached as Exhibit “D” are decisions on prior attorneys’ fee hearings finding that the time and billing for legal services rendered by Borah are both reasonable and appropriate. 17. Plaintiff is a long-time client of Borah and discounted rates were thus given. The rate billed for my time was a courtesy rate as my hourly rate is $550.00 per hour. 18. I opened this matter and dictated the pleadings to be prepared. I reviewed and edited all papers that were filed in this case. It was my duty as the senior partner assigned to this case and client to supervise and manage the litigation. 19. Together with Mr. Nadelbach, we successfully achieved what the client had requested that we accomplish, that is, to obtain summary judgment awarding Plaintiff its lease damages and attorneys’ fees. 20. The work performed and hours billed were necessary to achieve the ultimate outcome: summary judgment resulting in a judgment amount of $232,017.95 together with interests and costs. 21. The Court is respectfully referred to the accompanying memorandum of law explaining Plaintiff’s entitlement to the relief sought. The Court should grant Plaintiff’s motion and award it a supplemental judgment against Defendants, jointly and severally, for $21,190.71. 22. I hereby certify that, to my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the attached papers and the contentions therein are not frivolous as defined in 22 NYCRR § 130-1.1(c). WHEREFORE, Plaintiff requests an Order granting its motion in its entirety. 5 5 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2023 10:54 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/04/2023 Dated: New York, New York May 3, 2023 6 6 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2023 10:54 AM INDEX NO. 161105/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/04/2023 CERTIFICATION (of word count) I, Joshua Nadelbach, the attorney filing the foregoing Affirmation, hereby certify that the document is in compliance with 22 N.Y.C.R.R. § 202.8-b, containing a total of 1,287 words, as counted by the word-processing program. Dated: New York, New York May 3, 2023 ___________________________ JOSHUA NADELBACH, ESQ. 7 7 of 7