Sommer v. Hyman

122 Misc. 2d 399, 471 N.Y.S.2d 501, 1984 N.Y. Misc. LEXIS 2855
CourtCivil Court of the City of New York
DecidedJanuary 9, 1984
StatusPublished
Cited by2 cases

This text of 122 Misc. 2d 399 (Sommer v. Hyman) is published on Counsel Stack Legal Research, covering Civil Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sommer v. Hyman, 122 Misc. 2d 399, 471 N.Y.S.2d 501, 1984 N.Y. Misc. LEXIS 2855 (N.Y. Super. Ct. 1984).

Opinion

OPINION OF THE COURT

Harold Tompkins, J.

The principal issue presented after a hearing on the amount of attorneys’ fees to be awarded to respondents for the successful defense of these nonpayment proceedings is whether fees billed to the Sovereign Tenants Committee (STC) are recoverable from petitioner. The court finds that these fees are recoverable from petitioner and awards respondents’ attorneys’ fees pursuant to section 234 of the Real Property Law in the amount of $44,641.90.

These proceedings were brought after the petitioner took steps to remedy conditions which in 1980 were found to entitle respondents and other tenants at the Sovereign Apartments to a 5% rent abatement. Petitioner contended that the conditions had been corrected and notified the tenants withholding 5% of their rent that they should [400]*400commence paying the full rent. When the respondents refused to do so the instant proceedings were commenced.

On January 20, 1983 this court held that the conditions had not been corrected by the petitioner. (Sommer v Hyman, NYLJ, Feb. 9, 1983, p 12, col 1.) The trial lasted 13 days with over 1,600 pages of testimony. The 5% rent abatement was continued and respondents were awarded attorneys’ fees in an amount to be determined at an evidentiary hearing.1

At the hearing respondents demonstrated that 307.9 hours of Peter S. Herman’s time were expended in connection with the defense of the proceedings. Mr. Herman was trial counsel for the respondents’ attorneys of record, Feinberg & Herman. During the period this proceeding was pending Mr. Herman’s billing rate was increased from $120 per hour in 1981 to $125 per hour during 1982. Six hours of associates’ time were expended in defense of the proceedings at $50 per hour. Disbursements of $1,626.65 and an expert witness fee of $2,010 are also sought.

Respondents also seek recovery of fees for the time spent in efforts to obtain the attorney fee award, 22.3 hours of Mr. Herman’s time at $125 per hour and 1 hour of associate time at $75 per hour. Disbursements were $57.25 for the preparation for and litigation of the fee application.

Thus the total fees sought represent 330.2 hours of Mr. Herman at $120 and $125 per hour and 7 hours of associates’ time at $50 and $75 per hour along with disbursements of $3,693.30 and an expert witness fee of $2,010. The request totals $45,891.90.

Petitioner challenges the fee application on two principal grounds. First, petitioner contends that any fees billed to the STC are not recoverable since the tenants’ committee was not a party to the proceedings. Petitioner would have the court limit the award to $676.25 in fees since respondent Hart was only billed in this amount. Respondent Hyman was not billed. The remaining $42,290 was [401]*401billed to the STC which had agreed to finance the defense of the Hart and Hyman proceedings. Secondly, petitioner challenges the reasonableness of the hours expended and the hourly rate charged as not being consistent with the nature of a summary proceeding in this court.

Petitioner also argues that fees for the preparation for and attendance at the fee hearing are not recoverable and that work done on issues that respondents did not prevail on are also not recoverable.

The relevant factors in the determination of the value of legal services are the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel and the results achieved (Jordan v Freeman, 40 AD2d 656; Matter of Rahmey v Blum, 95 AD2d 294).

The court finds that the amount of time spent on these proceedings was reasonable. Furthermore the court finds that the hourly rates of $120 and $125 per hour for Mr. Herman’s time and $50 and $75 for associate time reasonable. The court credits the expert testimony adduced which supported the reasonableness of the hourly rates charged.

In view of the nature of the issues involved here, which required counsel to master complex engineering principles to adequately deal with the testing and performance of the safety devices installed on the building’s windows and the functioning of the ventilation system, the court finds that counsel actually spent the time as reflected in the time sheet introduced in evidence and that this time was necessary for the successful defense of the proceedings. The result achieved, the rebuttal of the presumption of no breach of warranty of habitability created by the aspects of the Department of Buildings approval, supports this conclusion. Thus the time spent was reasonable.

In Matter of Rahmey v Blum (95 AD2d 294, 300, 301, supra), where the issue was the award of attorneys’ fees under section 1988 of title 42 of the United States Code, the court stated that after the reasonableness of the time spent had been determined, utilizing the Judge’s own knowledge, experience and expertise as to the time required to complete similar tasks, the court should then determine a reasonable hourly charge for the services rendered. This [402]*402figure should be based upon the customary fee charged for similar services by lawyers in the community with like experience and of comparable reputation.

Here the court is satisfied that $120 and $125 per hour is reasonable for the services of respondents’ counsel when taking into consideration the above factors.

The next step is to calculate the “Lodestar” fee which is simply the hours reasonably expended multiplied by the reasonable hourly rate determined above. This figure provides “an objective basis on which to make an initial estimate of the value of a lawyer’s services” (Matter of Rahmey v Blum, supra, at p 303). In the case at bar since the court has determined that the hours spent by respondents’ counsel and the hourly rates charged are documented and reasonable, the Lodestar figure would be the same as the amount respondents have requested or $45,891.90.

This figure may be augmented or reduced by the court after considering such factors as the result achieved and the difficulty of the questions presented. The result achieved here goes far beyond the 5% savings to the two tenant respondents. Since the windows and vents are the same in each apartment the judgment in the instant case is res judicata as to the conditions in other apartments and indeed this court has given the finding preclusive effect in a subsequent proceeding (Sommer v Rosenberg, Civ Ct of City of NY, NY County, index No. 45503/83). Thus the result achieved is substantial. Moreover, the issues presented were complex in that a considerable amount of expert testimony by both sides was adduced at trial. In sum, the facts of this case do not support a reduction in the Lodestar figure and were it not for the low prevailing fee charges in the landlord-tenant field, this court would have been justified in awarding a higher amount by reason of the expertise and preparation of respondents’ counsel. The Lodestar figure of $45,891.90 will, however, be reduced by $1,250 which represents 10 hours spent on litigating conditions existing in respondents’ apartments which the court found did not rise to the level necessary to support a finding of breach of the implied warranty of habitability.

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Bluebook (online)
122 Misc. 2d 399, 471 N.Y.S.2d 501, 1984 N.Y. Misc. LEXIS 2855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sommer-v-hyman-nycivct-1984.