CMCSSG 221E48, LLC v. Brigette Assoc., LLC

2024 NY Slip Op 30433(U)

• Court: New York Supreme Court, New York County
• Decided: February 9, 2024
• Status: Unpublished

Opinion

CMCSSG 221E48, LLC v Brigette Assoc., LLC 2024 NY Slip Op 30433(U) February 9, 2024 Supreme Court, New York County Docket Number: Index No. 153335/2023 Judge: Shahabuddeen Abid Ally Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 153335/2023 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 02/09/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SHAHABUDDEEN ABID ALLY PART 16TR Justice ---------------------------------------------------------------------------------X INDEX NO. 153335/2023 CMCSSG 221E48, LLC, MOTION DATE 10/18/2023 Petitioner, MOTION SEQ. NO. 002 -v- BRIGETTE ASSOCIATES, LLC, DECISION + ORDER Respondent. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 62-68, 70-76 were read on this motion to/f9r RENEW/REARGUE/RESETTLE/RECONSIDER

In a Decision and Order dated August 2, 2023 ("August 2 Order"), this Court granted

petitioner's application for a license pursuant to RPAPL § 881. The August 2 Order provided,

inter alia, for petitioner to pay a license fee and architects' fees but denied respondent's request

for reasonable attorneys' fees. Respondent now moves pursuant to CPLR § 2221 for an order

granting leave to reargue the portion of the August 2 Order that denied attorneys' fees and, upon

reargument, granting respondent's request for reasonable attorneys' fees. Petitioner opposes.

Upon the above cited papers, respondent's motion is granted to the extent set forth below.

A motion pursuant to CPLR § 2221 is addressed to the sound discretion of the court

(Opton Handlier Gottlieb Feiler Landau & Hirsch v Patel, 203 AD2d 72 [1st Dept 1994];

William P. Pahl Equipment Corp v Kassis, 182 AD2d 22 [1st Dept 1992]). A motion to reargue

"shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court

in determining the prior motion, but shall not include any matters of fact not offered on the

previous motion" (CPLR § 2221 [d][2]). Such motion, however, "is not to serve as a vehicle to

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permit the unsuccessful party to argue once again the very questions previously decided" (Foley

v Roche, 68 AD2d 558 [!5 1 Dept 1979]).

Respondent contends that in denying reasonable attorneys' fees, this Court overlooked

the common practice in the First Department requiring petitioners to pay attorneys' fees incurred

by respondents in connection with RP APL § 881 proceedings and related negotiations. After

review of the case law, the Court agrees. While generally, what is known as the '·American rule"

requires each party to litigation to be responsible for its own respective attorneys' fees, in an

RP APL § 8 81 proceeding where the respondent has sought reasonable terms for access

"attorneys' fees, including those incurred in opposing the petition, are not an incident of the

litigation but rather part of the process of negotiating a license agreement" (Matter of Panasia

Estate. Inc. v 29 W 19 Condominium, 204 AD3d 33. 38 l l st Dept 2022]). This practice is

consistent with the general policy, observed by this Court in the August 2 Order, that because

"the respondent to an 881 petition has not sought out the intrusion and does not derive any

benefit from it ... Equity requires that the owner compelled to grant access should not have to

bear any costs resulting from the access" (DDG Warren LC v Assouline Ritz I. LLC 138 AD3d

539, 539-540 [1st Dept 2016], internal quotation marks omitted; see Mauer of Van Dorn

Holdings, LLC v 15 2 W 58 th Owners Corp., 149 AD3d 518 [1st Dept 201 7]). Accordingly, the

Court finds that here, where petitioner has sought not to bar all access but has rather disputed the

terms under which access is provided. awarding such reasonable attorneys' fees is warranted.

Petitioner's opposition rests primarily on its position that respondent's objections to the

license have been made in bad faith. Petitioner argues that respondent unnecessarily complicated

this litigation by raising items outside the scope of the license or making unwarranted and

unreasonable demands. Respondent has not, however, provided any authority that indicates an

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award of reasonable attorneys' fees in this instance would not be proper. To the extent petitioner

argues that certain fees incurred are not reasonable, and as respondent did not set forth a specific

amount of fees sought in its moving papers, the Court finds it appropriate for the amount of

attorneys' fees to be determined at a hearing before a Judicial Hearing Officer/Special Referee.

Based on the foregoing, it is hereby:

ORDERED that respondent's motion for leave to reargue is granted; and it is further

ORDERED that August 2 Order is vacated only to the extent that respondent's request

for reasonable attorneys' fees is granted; and it is further

ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be

designated to determine the issue ofreasonable attorneys' fees to be awarded to respondent

pursuant to the above decision, which issue is.hereby submitted to the JHO/Special Referee to

hear and determine; and it is further

ORDERED that the powers of the JHO/Special Referee shall not be limited beyond the

limitations set forth in the CPLR; and it is further

ORDERED that this matter is hereby referred to the Special Referee Clerk for placement

at the earliest possible date upon the calendar of the Special Referees Part (Part SRP), which, in

accordance with the Rules of that Part (which are posted on the website of this court at

www.nycourst.gov/supctmanh at the "References" link), shall assign this matter at the initial

appearance to an available JHO/Special Referee to determine as specified above; and it is further

ORDERED that counsel shall immediately consult one another and counsel for

petitioner shall, within 15 days from the date of this Order, submit to the Special Referee Clerk

by e-mail an Information Sheet (accessible at the "References" link on the court's website)

containing all the information called for therein and that, as soon as practical thereafter, the

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Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of

the matter upon the calendar of the Special Referees Part; and it is further

ORDERED that on the initial appearance in the Special Referees Part the parties shall

appear for a pre-hearing conference before the assigned JHO/Special Referee and the date for the

hearing shall be fixed at that conference; the parties need not appear at the conference with all

witnesses and evidence; and it is further

ORDERED that, except as otherwise directed by the assigned JHO/special Referee for

good cause shown, the trial of the issue(s) specified above shall proceed from day to day until

completion and counsel must arrange their schedules and those of their witnesses accordingly;

and it is further

ORDERED that counsel shall file memoranda or other documents directed to the

assigned JHO/Special Referee in accordance with the Uniform Rules of the Judicial Hearing

Officers and the Special Referees (available at the "References" link on the court's website) by

filing same with the New York State Courts Electronic Filing System (see Rule 2 ofthe Uniform

Rules); and it is further

ORDERED that all other aspects of the August 2 Order remain in full force and effect;

ORDERED that any requested relief not expressly granted herein is denied.

This constitutes the decision and order of the Court.

2/9/2024 DATE SHA CHECK ONE; CASE DISPOSED □ NON-FINAL DISPOSITION GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 0 REFERENCE

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