Livigne v. D'Agostino Supermarkets, Inc.

207 A.D.2d 776, 616 N.Y.S.2d 515, 1994 N.Y. App. Div. LEXIS 8766

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 12, 1994
• Status: Published

Opinions

—In an action, inter alia, to recover rent pursuant to a lease, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (O’Shaughnessy, J.), dated March 30, 1992, which denied their motion for summary judgment on the third cause of action for expenses and attorneys’ fees, and (2) an order of the same court, dated August 13, 1992, which denied their motion to renew and reargue.

Ordered that the order dated March 30, 1992, is reversed, on the law, the plaintiffs’ motion for summary judgment in their favor is granted, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine the amount of expenses and reasonable attorneys’ fees; and it is further,

Ordered that the appeal from the order dated August 13, 1992, is dismissed as academic, in light of our determination on the appeal from the order dated March 30, 1992; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The subject lease provided that the defendant would reimburse the plaintiffs for any expenditures, including attorneys’ fees, incurred as a result of the defendant’s default in paying rent. After the plaintiffs commenced this action to recover unpaid rent, the defendant tendered the rent for the months in question. The plaintiffs then moved for summary judgment on the third cause of action of the complaint, which sought to recover expenses and attorneys’ fees incurred by the plaintiffs in bringing this action. In support of the motion, the plaintiffs submitted, inter alia, a bill from their attorneys in the amount of $4,234.50.

The Supreme Court erred in denying the plaintiffs’ motion in its entirety, as the lease provision regarding the recovery of expenses and attorneys’ fees is valid and enforceable (see, Trump Vil. Section 3 v Moore, 84 AD2d 812). We agree, however, that the fees sought by the plaintiffs appear to be unreasonable. On the record before us, we are unable to determine what would constitute a reasonable fee under the circumstances of this case. We therefore remit the matter to the Supreme Court, Nassau County, for an assessment of expenses and reasonable attorneys’ fees (see, Fleet Credit Corp. v Harvey Hutter & Cox, 207 AD2d 380; Tuttle v Juanis, 54 AD2d 589; cf., Jordan v Freeman, 40 AD2d 656). Bracken, J.P., Copertino and Santucci, JJ., concur.