Motion for Attorney Fees in Fifth Partners Llc v. Punch House Flatiron Llc, Joseph W. Foley, Nada Vasilijevic| Trellis.Law

On December 13, 2021 a Exhibit,Appendix was filed involving a dispute between Fifth Partners Llc, and Joseph W. Foley, Nada Vasilijevic, Punch House Flatiron Llc, for Real Property - Other (Breach of Lease) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 05/04/2023 10:54 AM INDEX NO. 161105/2021
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 05/04/2023

FILED: NEW YORK CIVIL COURT - L&T 04/19/2023 10:29 AMINDEX NO. LT-305005-22/NY
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 04/19/2023

CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL PART 52
-----------------------------------------------------------------X
50 l FIFTH A VENUE COMP A Y LLC, Index No.: LT-305005-22/NY

Petitioner-Landlord,
DECISION/ORDER
-against-

JEFFREY COHN, ESQ.
Room 2008 In The Building Known As
501 Fifth Avenue, New York, New York 10017,

Respondent-Tenant,

"JOHN DOE" and "JANE DOE"

Respondents-U ndertenants.
-----------------------------------------------------------------X
HON. AIJA TINGLING

Recitation as Required by CPLR §22 l 9(a): The following papers were read on this Application
for Attorneys' Fees:

Papers Numbered
Petitioner's Application for Attorney 's Fees and Exhibit ...................... .. ............ .
Upon the foregoing cited papers, the Decision/Order in this motion is as follows:

Petitioner, 501 Fifth Avenue Company, LLC, commenced this action on or about April
11 , 2022, by filing Notice of Petition and Petition against Respondents, Jeffrey Cohen, Esq. and
John Doe and Jane Doe. Petitioner was granted summary judgment and reasonable attorneys '
fees by decision/order dated February 15, 2023. The issue of attorneys' fees will be addressed on
submission, uncontested by Respondent.

Courts have long held that lease provisions for recovery of attorney's fees are valid and
enforceable, where a landlord prevails in a summary proceeding brought because of a tenant's
breach of the lease. Cier Indus. Co. v. Hessen, 136 A.D.2d 145,526 N.Y.S.2d 77 (1 st Dept.
1988). In the instant matter, clause 1 19 of the lease agreement between the parties specifically
provides for recovery of legal fees incurred to enforce the lease.

" An award of reasonable counsel fees is within the sound discretion of the trial court,
based upon factors such as the time and labor required, the difficulty of the questions involved,
the skill required to handle the matter, and the attorneys' experience, ability, and reputation."
Ebrahimian v. Long Island R.R. , 269 A.D.2d 488, 703 N.Y .S.2d 731 (2d Dep' t 2000). To
determine if the amount of fees sought is reasonable, the court uses the " lodestar" method, by
which the court determines the reasonable hourly rate and multipli es it by the reasonable number

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of hours expended, then adjusts the fee based upon certain subjective criteria. See Flemming v.
Barnwell Nursing Home and Health Facilities, Inc., 56 A.D.3d 162,865 .Y.S.2d 706 (3d Dept
2008). In determining what is reasonable, the First Department has held

"The reasonableness of plaintiffs fees can be determined only after
consideration of the difficulty of the issues and the skill required to resolve
them; the lawyers' experience, ability and reputation; the time and labor
required; the amount involved and benefit resulting to the client from the services;
the customary fee charged for similar services; the contingency or certainty
of compensation; the results obtained and the responsibility involved." Morgan &
Finnegan v. Howe Chem. Co., 210 A.D.2d 62, 619 N. Y.S.2d 719 (1 st Dep't 1994 ).

In consideration of the Affidavit of David B. Rosenbaum, Esq. and the time records
submitted, the court finds Petitioner's attorneys' fees and expenses to be reasonable. Three
attorneys were assigned to this matter: David Rosenbaum , Nicole Meyer and Joshua Nadelbach.
While the three attorneys all worked on the same matter, none of the entries were duplicative.
The description of work in the billing entries demonstrate how the matter was handled step by
step from inception to end. Considering skill and experience and the customary rate for similar
services in Manhattan, the court finds Meyer's hourly rate of $385/$407, Nadelbach's hourly rate
of $364 and Rosenbaum's hourly rate of$425, to be reasonable.

Based on the above, it is hereby,

ORDERED that Petitioner is awarded $14,131.09 in attorneys' fees, and disbursements.

ORDERED that a copy of this decision with Notice of Entry be served upon Respondent
with 30 days of receipt of this decision.

This constitutes the Decision and Order of the Court.

Dated: ~tit O 5, ZJJL,s
N: r~k, New York Hon. Aija Tingling, J.C.C

f"hil Court
c·•, ,.of ti I

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SUPREME COURT OF THE STATE OF NEWYORK
NEW YORK COUNTY
JEREMY R. FEINBERG
PRESENT:
SPECIAL REFEREE PART 5'-{f<_
Index Number: 1601021.2017
INDEX NO. _ _ _ __
EMPIRE LLC
vs. MOTION DATE _ _ __
ARMIN A. MEIZLIK CO. INC.
MOTJONSEQ.NO. _ __
SEQUENCE NUMBER : 002
HEAR ANO REPORT

Tne following papers, numbered 1 to _ _ , were re:ad on this mMion tolfor _ _ _ _ _ _ _ _ _ _ _ _ _~
Notice of Motion/Order to Show Cause- Affidavits - Exhibits I No{s). _ _ _ _ __
Answering Affidavits- Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ !No{s). _ _ _ _ __
Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No{s). _ _ _ _ __
Upon the foregoing papers, it is ordered that this m ~ .

~ i e . . . IS ,u,olJ I'-\ 0.((0.1~ ;J/LJt ~J__ tl{Cu~'f•')

~1),-J-- tVl;W {€M},~ilhU!'.-tldu1
PAPERS RECEtVED

NOV 12 2019
NYS SUrlREME COURT • ClVll
ORDf.R Ss:l ION: ~ RM 119A

(
'0 ·w NON-FINAL DISPosmoN
1. CHECK ONEc ..............,......................................................
2. CHECK AS APPROPRIATE: _______.,,OTION IS: [)GRANTED
CASE DISPOSED
□ DENIED = GRANTED IN PART O OTHER
~- C-HfCK JF APPRO?RfATE: ................ ~.............................. O SETTLE ORDER O 'suBMIT ORDER
[j DO NOT POST O FIDUCIARY APPOINTMENT O REFERENCE

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 84R
------------------------------------------x
EMPIRE LLC,

Plaintiff,

Index No.: 160102/17

-against- Referee Report and
Recommendation

ARMIN A. MEIZLIK CO. INC. AND HAROLD WEISS,
PAPERS RECEIVED

NOV 12 2019
Defendants.
NYS SUPREME COURT - CVlL
ORDER SE:-rJON - RM 119A
------------------------------------------x
TO THE HONORABLE .ANTHONY CANNATARO, PART 41:

By decision and order dated March 1 1 2019 (the "March 2019

Order")·, t:he Honorable Anthony Canr.'1.ataro referred this matter to

the Special Referee Part for assignment to a referee to he·a.r and

repoit o!l the amount of reasonable attorneys' fees d'..le to

Plaintiff from Defendants.

Following one adjournment, the matter was assigned to me on

September 18, 2019 and I held the hearing on that date_

Plaintiff was represented by David B. Rosenbaum, Esq_ of Borah,

Goldstein, .;_ltschuler, Schwartz, Nahins & Goidel P.C. ·(''Borah

Goldstein"), Defendant:s were represented by David Binson, Esq.,

a solo practitioner. Mr. Rosenbaum was the only witnessi he
testifieC. in the narrative form about the amount and nature. of

ser,rices his firm provided Plaintiff and was cross-examined.

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At the conclusion of_ the proceeding, because there were

legal issues as to which the parties sharply differed, I

perm.itted each to file a post-hearing brief: Defendants' brief on
October 24, 2019 and Plaintiff's brief on November 4, 2019. I

received the transcript (referred to as "'Tr._" herein), and the

briefing on the dates scheduled, fully submitting the matter

before me. In addition to the testimony and exhibits, where

appropriate, I have taken judicial notice of the uncontroverted

matters that are contained in the county clerk file and the

court's computerized records (Leary v. Bendow~ 161 .AD3d 420, 421

[1st Dept 2018])

BACKGROUND

?his litigation arises from a dispute over ·a commercial
lease, Plaintiff commenced the action by summons and complaint

on November 13, 2017, and following extensions of tin1e,

Defendants answered on January 15 r 2013. Shortly after issue was

joined, Plaintiff moved for summary judgment pursuant to CPLR

321.2, and Defendants cross-moved to dismiss the complaint and to

add a counterclaim. Following adjournments, the Court issued a

Decision and Order dated ,January 4 1 2019· (the "Ja..11.uary 2019

Order") which, as pertinent here, granted Plaintiff's motion;

awarded Pla~ntiff certain sums due under the lease; and, directed

the parties to appear for a hearing o:i at::orneys' fees. Instead

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of that heari~1.g., the court. issued the March 20l9 Order. This

reference followed·.

THE HEARING

Mr. Rosenbaum testified as to his education and work

background 1 including joining Boiah Goldstein in 1997 as a junior

part:ner, leaving to start his own practice, and returning in 2003

as a senior partner. He supervises the firm's commer_cial

landlord-tenant divisio!l and shares responsibility tor overseeing

its Supreme Court division. His c·"1rrent billing rate :i.s $450 per

hour, but because Plaintiff is a long-standing client, he

currently bills at a reduced rate of $398 per hour {Tr. 4-6). He

later added testimony about the background and experience of the
other timekeepers on the bill, although he did not do so in the

same level of detail he did for his cwn (Tr. 22).

Mr. Rosenbaum described Borah Goldstein's time keeping

practices and how bills are generated. He introduced invoices

for the time spent in furtherance of this action which I ad:mitted

into evidence over Defendants' objection (Pl. Ex. l; Tr. 6-14}.-"'

He then described the work performed int.he underlying lawsuitr

from preparation of the summons and complaint to the summary

Mr. Rosenbaum conceded an accidental over-billing of $92
due to a typographical error in a colleague's· billing rater and
that the amount sought should be $20r385.21 {Tr. 24).

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judgment. motion and response_ to Defenda.nt.s' crass-motion. He

also described the work an associate and a junior partner

performed on the matter, noting that he had not charged the

client for some of the work perfo:nued. by the associate which was

not of satisfactory quality (Tr. 15-18) .'

1'1r. Rosenba.urn testified about the January 2019 Order

g.rant.ing Plaintiff's motion fo:r summary judgment and awarding

$77,399.76 in damages plus sta:.',J.tory interest, the amount sought.

He addressed the steps taken to file a. notice of entry and to

seek to enforce the judgment, including taking a deposition.

:?inally he testified to the work a junior partner and an

associate performed to prepare f9r the hearing on attorney fees

(Tr. 19-21, 23). He also noted that the client had paid all of
the bills it had been ·sent (Tr. 21)

On cross-examination 1 Mr. Rosenbaum indicated that this was

not the first time he had litigated a case invclving unpaid sums

under a commercial lease - he had handled something between 30-50

such cases previously. He had also filed summary judgment

motions in many such cases. He has used forms and previously-

The parties .la.ter stipulated to admission 0£ Plaintiff's
retainer agreement witl1 Borah Goldstein {Pl. Ex. 3; Tr. 32-33}.
They also stipulated on the record that I could consider the
language of the lease and the guaranty between the parties, to
the extent each document had been appended to prior pleadings and
ruled upon by the Court in issuing the January 20l9 and March
2019 Orders {Tr. 37-38).

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filed pleadings as models for his papersi in this case, -he

admitted to using such a model to prepare the complaint in this

action .but that it still took several hours cf time to update the

prior pleading (Tr. 25-27). On re-direct, he clarified that

because Borah Goldstein had brought other cases for Plaintiff', it

was both expected and appropriate tl'lat t:he firm would use prior

papers as models for current ones (Tr. 38-39).

DISCUSSION

I report and recommend that Mr. Rosenbaum was a credible

witness. Whatever interest: he may have in procuring a higher fee

av;ard for ·Plaintiff did not, in my view, diminish the

believability of his testimony. Indeed, I found that he

testified in a straightforwaY-d and forthright mar1-ner. I report

and recommend that this Court should make similar credibility

findiags (Herman v. Gill, 6l AD3d 433 [1st Dept 2009]).

Based on the parties' brie£ing 1 it appears that Plaintiff

has further reduced the fees and costs it is seeking to

$19 1 518.96. 3 To determine reasonable attorneys' fees, I must

. .,eigh the number of hours reasonably expended on the litigation

3
Plaintiff conceded in its brief that there was a
'c.y-pographical error in one bill resulting· in 2. 5 hours billed by
Nr Rosenbaum at $385 per hour rather than 0.25 hours at that
ra e. This results in a decrease cf $866.25 to the amount sought
(P. Br. 1; Pl. Ex. 1 fJan. 2019 Invoice])

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multiplied by a reasonable hourly rate or what is generally
referred to as the "lodestarr' method. (Hensley v Eckerhart, 461

US 424, 430 [1982]). I am also to consider,

(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to
p'erform the legal service properly; {4) the preclusion-
of employment by the attorney due to acceptance of the
case; {5) the customary fee; (6} whether the fee is
fixed or contingent; (7) time limitations imposed by
the client or the circumstancesi {8) the amount
involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the
uundf!sirability 11 of the case; (11) the nature and
length of. the professional relationShip with the
client; and {12) awards in similar cases.

{Id. at 430 n.3; see also Matter of Freeman, 34 NY2d l [1974];

Sachs· v. Adeli( 121 AD3d 490 [1st Dept 2014} [affirming Special

Referee 1 s award of attorneys' fees]}

l. Reasonable Hourly Rates

Borah Goldstein appears to charge rates ranging from Mr.

Rose!lbaum's reduced rate of $398 per ho.ur in the most recent

bills to lesser amounts for other partners and associates. On

their face, each of these rates appears to be reasonable, and I

report and recommend that they be left undisturbed. I note that

Mr. Rosenbaum's credible testimony that all bills have been paid

further supports the reasonableness of the rates charged ..

2. Reasonable Hours Expended

Defern;lants argue that there is pervasive block billing in

the Borah Goldstein invoic-es and that a ·aeduction is warranted

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for that reason {Def. Br. 2). Plaintiff is correct that block

billing does not render the attorneys' fees 1u~reasonable p~r se

(J. Re:mora Maintenar1ce v. Efro1uovich 1 103 AD3d 501., 503 [1st Dept

2013]). Here,_ the block billing did not create any difficulty

for me in revie~ving the underlyi~1g billing entries. •i As suchf I

report and recommend that no deduction on this basis is necessary

(cf. Silverstein v. Goodznan., 113 AD3d 539 [1st Dept

2014] [affirming Special Referee's deduction of ten percent from

fees otherwise awarded due to block billing]).

Similarly, I report and recommend that Defendants'

contentions about how long Borah Goldstein worked on parts -of the
case are without merit, Applying my own kno·wledge a;.1.d experience

to assess how long certain tasks should take, I do not detect any

reason to adjust the amount billed on this basis either (Sc.l1oenau

v. Lek, 283 AD2d 200 [1st Dept 2001]) _:a, .I:1 reaching· t11is

recommendation, I credit Mr. Rosenbaum 1 s testimonyr supported by

the bills, that Borah Goldstein wrote off a substantial amount .of

4
Plaintiff urges that because. there was no difficulty .i.n
the attorney-client relationship caused by block billing, no
reduction is necessary. I specifically reject this argument,
which was in any event not supported by any testimony, but reach
the conclusion that no block-billing deduction is necessary for
~he reasons stated.

Having considered the other factors in the lodesta.r
analysis, including· the success that Plaintiff had on the merits
(Hernandez v. Kaisman, 139 AD3d 406 [1st Dept 2016)), I further
report and.recommend that no additional adjustment of the fees
sought is warranted.

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time for work by an associate that was not useable.

3. Fees on Fees

The parties also disagree as to so-called "fee:S on fees" -

the time spent preparing for and conducting the fee hearing. in

front: of me. The First Department has made clear that such fees

are only available when based on a statute or an agreement th.at,

is unmistakably clear in calling for such fees (Batsidis v.

Vlallack Mgt. Co., Inc. 1
126 J:>..D3d 551 [1st Dept 2015] [citing Sage

v. Proskauer, 288 AD2d 14 [1st Dept 2001]). Following the

parties' stipulation that I may review ::.he relevant language of

ths guaranty and lease (Tr. 37-38}, I report and recommend that

there is no such contractual or statutory authorization here.

Review of the invoices starting 1.rith March 3l,1
2019 reveals

the following time that could be ct,_aracterized as fees on fees:

0.6 hours of Craig Notte 1 s time at $350 per hour ($2l0); 1.5

hours of Mark Krassner's time at $350 per hour ($525}; and 1.5

hours of Joshua Nadelbach 1 s time at $285 per hour ($427.50). I

thus report and recommend that $l 1 162.50 of Borah Goldstein's

fees should be deducted as fees on fees.

4. Disbursements

There does not appear to be any dispute as to the inclusion

of disbursements sought which are separately listed in the Borah

Goldstein billing material. Counsel did not, ho\,1ever, divide the

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total amount sought between attorneys' fees and costs. I have

therefore analyzed the invoices one by one, arriving at the
figure of $994.61 for costs a.~d $18,524.35 in fees. I report and

recommend that the costs, which are otherwise reasonable, should

be awarded in full (Ri'1P Capital Corp. v. Victory Jet LLC, 20l3 :t,,i"Y

Slip Op. 5l543 (U) [Sup Ct, Suf.folk County 2013]).

5. Summary· of Fee Award

I report and recommend that from the $18 1 524.35 sought in

legal fees, there should be a deduction of $1,162.50 for fees on

fees, leaving $17,361.85. I further report and recommend an:

award of the entirety of disbursements sought: $994.61.

CONCLUSION

I hereby report my findings as indicated above, and

recommend that the honorable court, upon submission of this

report and a motion pursuant to CPLR 4403, confirm the report

vdth respect to its findings. The parties have been sent a copy

of this report (by e-filing). In accordance with CPLR 4•103 and

22 :N""lCRR 202. 44 {a), following the filing of the report and notice

to each party of the filing of the re.port, Plaintiff shall move

to confirm or reject all or part of the report within fifteen

(15) days after notice of the filing of the report. If Plaintiff

fails to do so, then Defendants shall so move within thirty (30)

days after notice is given (See Gould v Venus Bridal Gown and

}1.ccessories Corp., 148 Misc2d 589 [Sup Ct NY County 1990]).
9

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If neither side files .a motion, I report and recommen_4 that

the court sua sponte confirm the findings set forth above.

Dated: November 12, 2019

Respectfuliy Submitted:

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SUPREME COURT OF THE STATE OF NEW YORE'.
COUNTY OF NEW YOR.K IAS P-ART 86

--------------------~------~-----------------x
FIFTY EAST FORTY SECOND CO_MP~..NY LLC. ~

Plaintiff.,.
INDEX NO. 154249/18
SEQ. NO.: 002
-aga.ipst;-
R.EFER:EE•S DECISXON
AND OBDER
DR. ILYA AKSELR0D and D~- MIKHAIL
AKSELRUD,

Defendants.

--- .------------- ------ ~-------------------·X

FR.OM THE SUPREME coumr NEW YORK COUNTY IAS PAR'l 8

By decisio;J. and order u,,J.der motion sequence nlli7lber 0-01

of the Honorabl-e Ly-nn ::c Kotler; dated November 13, 2018, ·arid filed

i::::hereafter on Novemher 21, 2018, wherein the court granted the

plaintiff Fifty Ea·st E'Orty Second Comp-any LLC, ("Fifty East") su.Tu-rtary

judgment. purs-uant to CPLR §3212 against the defe:::tdant Dr. Mi'khail

Akselrud ( "P...k. selrud-") on liability a~d dair:.ages fo:!' unpaid rent .undScr

a com..-:i.ercial lease a:-.d for an award of reasonable attorneys' :fees

3.nd by a compan.:..on order cf re£erence., dated November 13, 2-0:s, and

filed thereafter on Novernber 21, 2018, tt:e issue of the amot:.nt of

what attO.rneys' fe:es t:le plaintiff i.s enti"t:led to reco~.rer £rem the-

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defendant in ins ti t".iting and prose·cuting this· action.r was referred

for a.ssignmeht to a Special Ref-eree or J;..:.dici.al Reaiing Of,ficer

{ "C:""10'') to hear and report witr: recommendations. Tbe final

detemination of that branch of the underlyi?:;.g motion as to the amount

of attorneys.r fees :w:as othe-rlifise held in abeyance by the refer:::ing

court. pending receipt of the Special Referee's or JB.o~s report and
recomme:ndatior:.s and a :motior.. to confirm and/a::::- ciisaffir:m such repo::::t

pursuant to CPLR §"4403, or receipt of the de::.ermination of the Special

3.eferee or JE.O upor.. a stipulation c:o hear and ·determine pursuant

to CPLR §4317.

This matter :was assigned to the unde=sign-ed Special Re·feree

for hearing o_rc: Jam.:.ary 29,. 20-19. The plaintiff and th_e defendanc:

both appeared by tt-ei':~- ~espe:::::t:ive counsel o·f:. re::.o;:d.

On January 29., 2019, a wr.itter. stipulation was executed.

by both sides whereby this re·ferenced f::::-amed issue·h:ea.-rir:.g w-as char:ged

from a hear and report with recomm-endations to a hear and determine

in accordance. with CPLR §4317 (b} to determine the £:tamed referenced

issue and the remainder of the un.derlying motion held in abeya::,ce

o~ the arr.aunt of attorneys' fees due i:he plaintiff from the defendant.

T:1.is stipulation was duly so o.c:-dered and filed by the undersigned

Special Re£eree en that same said date_ This referenced matter was

t:hereafte.r ad~ou1:ned to February 20, 2019 for hearing.

':'he framed inquest bee.ring as an assessment of dama·ges

a.s to the amcunt of attorneys' fees to be paid by the defendant to

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t.he plaintiff was conduc:'..ed anG concl.uded on February 20, 2019.

At the hearing botr_ attorneys opted to waive opening statements and,

not.withstanding th1c:;ir stipulation of January 29, 2019 to hear and
determine, also waived- the .filing of the transcript of the "1linutes

of the hearing :Otherwise required by CPLR §4320 (b). Bot..l1 counsel

presented sI':ort closing argu,...-i.ents on the record and waived t.he

oppcrtu...'1.ity to present post-hearing memoranda- of law. 'l'he attorneys

p:r:o£f.-ered the·ir respective cases on the amount: due for damages as

attcrneys' fees on the record through wic::ness testi:mony and

documentary e·xhibits marked in evidence. All exhibits: :mark-ed as

Plaintiff's land 2 and Defenda:1trs A, B, C and D, were submitted

in evidence and fiied herewith. Oniy the plair~tiff offered witness

teSti:mony. That wfi:.ness was David B. Rcsenba-um, Esq., the

repr.esentative attor:hey for the plai::tiff ar~ this litigated matte:::.

Th·e defe"rrdant offered no test:imonial witnesses and essentially rested

on the plaintiff's case p.re·s-ented, subject only to cross examination

and the defe'nde.nt' s documentary exhibi-ts prese::-atect. at trial.

The underlying action. by the plainti£f sought recovery

against the_ def-er;i.¢.ant, based upon a breach of ·cont.::::act cf a- commercial

l.e.a.se by the -defe.:r-~dant, for ;J_npaid rent and additional rent due

through the· end of the leas·e· terrr.. 7he plaintiff was a;.;a::::cj.ed summary

judgment in it's favor and ag.ains:t the defendant with a :m:oney judgment

for s.aid unpaid reiht ih the- S1.:Jrt of $301 1 5 99 . .93. The amount of

reccverable attorney's £ees by plaintiff agairrst the defendant was

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referred· for a framed issue referenced hearing- to detemine the extent

and -::he arnount of darrcages,. :..n the form of attorneyr s fees, to which

the plainti::f is entitled tc, reco-ver from defer,dant.

The subject referenced issue pertains tc· the ass-essment

cf the arci.o"...m:: of re.asonab:e attorney .fees reirri.bursable to plai:.1.tiff

for instituting and prosecuting the c1r.C.e:::'.'lyi~g breach of contra.ct

case, The plaintiff speci::ically cla.i..rn.ed principal damages against

the -defehdar:t for outstanding and ,.mpaid reht in the sum cf

$301,..599. 93 plus inte-rest from Feb.r:1..:J.ary 1, 2018, together with coses

and disbursements.

A -tot:al amount of $15r578.19 is claimed by plaintiffr

inclusive of attorneys 1 f.ees of $15,349.34 and costs a.nd

disbursements of $228.-8-S"

Th-e defendant maintained .that the p2.aint.iff' s demand for

costs and attorneys' fees in the amount of $15,578.19 was excessive

.antj unreasonable. The defendants' .assert ·that the le-gal fees are

.inaccurate and out of proportio:h wit:h the legal services reasm1ably

needed in a proc:e.ed±ng for surru:rtary judgm.ent.

T~e plaintiff presented only one witness in suppcrt of

its claims .for dama-ges due for fees -and co.sts. The- plc:.intiff offe:::-ed

the testimony of David 3.. Rose:nbaumr Esq., a member of -::he law :firm

Borah Golds~ein Altschuler Nahins & Goidel, P.C., as to the legal

serv-ices rendered- in connectt.On with the col:Z.ection on 'the lease

breach by 'the defeni;iants o.r:i. behalf of the plaintiff.

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M:t. Rbsenba·c.UD. tes".::.ified that the amount that -;.,.,as due and

cwing for '.lnpaid rer:t 's:;y the defendant under the -::::-0:mmercial lease

obligation, :withoU:"i: collection cos::.s, to be a total amount.

$301, 599.. 93. Mr. Rosenbaum recited that the -::ota.l amounc:: of

collection cosi:s, ir:clusi.:ve of attor:ceys fees, clair1.Ied by the

plainti:ff was $15 1 578.19, a."ld that t:l'le legal services and costs were

all necessa~y and ieasonable as provided. by counsel in securing the.

plair.tiff' s rights and inte-rests. It was noted -::hat def.endant did

not challeng:e the ir.dividual billing rates of the att-or::ieys who

performed the legal services or: beha-lf of the plai:1tiff and -not b-si.:ig

ccm:.ested can be deemed on their face reasona,ble. The plaintiff

proffered that ;.t had establi~hed' its e:rtit.lement., on the procf

presented, ~o the attorneys' fees and costs sought on this

app.licatio:')..

The defend.a.nt cffe:red no witnesses at the hearing, factual

or exper.:, a.nd rested on the hea::.-ing record in- regard tc the

pla.intiff 's claims fer deterinin.ation an.6 reirr-..bu::-sement. of attorneys'

fees and cos"::s. While the defendant rested its case without offering

any wi,::nessces, it was nonetheless argued t:lat the proof.presented

by the plaintiff on this record could not be objective::.y ascertaineC

to any degree from the pr5Jof proffered by plaintiff and should

therefore be substantially ,adjusted and reduced. 'I'he defendant.

argued that the plai'r.tiffts fee de:nand w.as excessive on its face
1

and ~ot reasonably related to the amcu~t and type of work necessary

Case Info

Judge

Gerald Lebovits Track Judge’s New Case

Case No.

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Document Filed Date

May 04, 2023

Case Filing Date

December 13, 2021

County

Parties

Fifth Partners LLC Plaintiff
GRUBER, PAUL N. Attorney for the Plaintiff
Joseph W. Foley Defendant
KRASSNER, MARK Attorney for the Plaintiff
Nada Vasilijevic Defendant
NADELBACH, JOSHUA NEAL Attorney for the Plaintiff
Punch House Flatiron LLC Defendant
ROSENBAUM, DAVID BARRY Attorney for the Plaintiff
Tung, Kevin Kerveng Attorney for the Defendant
JOSHUA FENSTERSTOCK Attorney
DAVID ROGGENBAUM Attorneys for Plaintiffs
JEFFREY COHN Attorney
BRUCE ROSENBAUM Attorney
DAVID ROE Attorneys for Plaintiffs

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Exhibit,Appendix: Fifth Partners Llc v. Punch House Flatiron Llc, Joseph W. Foley, Nada Vasilijevic

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Case Info

Parties