Legal fees awarded landlord are calculated by the court.A landlord commenced eviction The removal of a tenant from possession of premises in which he or she resides or has a property interest done by a landlord either by reentry upon the premises or through a court action. proceedings to recover unpaid rent and to secure a warrant of eviction against the tenant. After the trial, the landlord was awarded final judgment of possession of the premises, a warrant of eviction and a judgment against the tenant for back rent of $690,000. The Court also directed the landlord's counsel to submit an affidavit in support of landlord's request for attorney's fees. The tenant's attorney was given an opportunity to respond to the landlord's application. The landlord's attorney submitted that he expended in legal time, disbursements and costs the sum of $115,000. According to the landlord's attorney's affidavit, the charge for legal time was billed at a rate below the customary amount charged by attorneys engaged in similar practices in New York City New York City: see New York, city. New York City City (pop., 2000: 8,008,278), southeastern New York, at the mouth of the Hudson River. The largest city in the U.S. and this rate was multiplied by the number of hours worked. This method of calculating legal fees is commonly referred to as the "Lodestar lode·star also load·star n. 1. A star, especially Polaris, that is used as a point of reference. 2. A guiding principle, interest, or ambition. " method. The landlord's attorney also claimed that the litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute. When a person begins a civil lawsuit, the person enters into a process called litigation. was not routine, but that it was unnecessarily protracted pro·tract tr.v. pro·tract·ed, pro·tract·ing, pro·tracts 1. To draw out or lengthen in time; prolong: disputants who needlessly protracted the negotiations. 2. by the aggressive and dilatory Tending to cause a delay in judicial proceedings. Dilatory tactics are methods by which the rules of procedure are used by a party to a lawsuit in an abusive manner to delay the progress of the proceedings. litigation practices of the attorney for the tenant. The landlord's attorney also argued that the judge himself was an expert on the value of attorney's fees and thus could evaluate the appropriateness of the landlord's claim. Tenant's counsel submitted that the application for attorney's fees by the landlord, which was in the form of affidavits, was improper inasmuch as it sought an award of attorney fees without a hearing. The tenant claimed that it had an inherent right to a hearing on the reasonableness of these attorney's fees. The tenant also claimed that the Lodestar method for billing utilized by the landlord's counsel was improper, and that since this was a run-of-the-mill summary proceedings An alternative form of litigation for the prompt disposition of legal actions. Legal proceedings are regarded as summary when they are shorter and simpler than the ordinary steps in a suit. for non-payment, the legal fee should be billed at a "market value," which the tenant argued should be $10,000 for this case. The tenant also claimed that since there was no formal retainer agreement between the landlord and its attorney, and since the attorney's records indicated that the landlord hadn't even paid any of the bills, the assumption should be that the landlord, as the client, did not agree with the sums hilled. It was central to the tenant's position that these proceedings were very straightforward and that the landlord's counsel should not be compensated for hours spent in "re-inventing the wheel," and for billing for indiscriminate expenditure of time. Finally, the tenant argued that since a warrant of eviction was issued by the Court, the Court lost further jurisdiction over this case, and therefore the issue of attorney's fees could not be heard. Judge Hummel hummel entire, naturally polled deer. , who heard the case in New York New York, state, United States New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of Civil Court, Non-Housing Part, ruled that formal retainer agreements are not customarily used in landlord-tenant proceedings and are in fact required only in few cases, such as in matrimonial mat·ri·mo·ny n. pl. mat·ri·mo·nies The act or state of being married; marriage. [Middle English, from Old French matrimoine, from Latin m and personal injury actions. Judge Hummel also decided that no hearing was required on the issue of attorney's fees when those fees are authorized by the lease itself, and that the tenant had not supported its challenge to the amount of the legal fees by failing to particularize par·tic·u·lar·ize v. par·tic·u·lar·ized, par·tic·u·lar·iz·ing, par·tic·u·lar·iz·es v.tr. 1. To mention, describe, or treat individually; itemize or specify. 2. challenges to the number of hours billed, the tasks performed or the rate of legal fees charged. Thus, the tenant did not raise any issue of fact which requires a hearing. Computerized billing statements utilized by the landlord's counsel, which sufficiently particularized par·tic·u·lar·ize v. par·tic·u·lar·ized, par·tic·u·lar·iz·ing, par·tic·u·lar·iz·es v.tr. 1. To mention, describe, or treat individually; itemize or specify. 2. the services performed and the time incurred, were acceptable as proof of the services rendered. The Court also ruled that it continues to retain jurisdiction over the issue of attorney's fees, since its decision and judgement which ordered the warrant of eviction also provided that the landlord was entitled to its attorney's fees. Therefore, the Court retained jurisdiction to decide what those attorney's fees should be. Judge Hummel found that the tenant had made only conclusory con·clu·so·ry adj. 1. Conclusive. 2. Law Convincing, but not so much so that contradiction is impossible; not justified or supported by all the facts: allegations attacking the amount of legal fees generated by the landlord's attorney. The tenant made only a few specific objections, and only to some of the entries in landlord's attorney's application, and yet urged the Court to conclude that those few examples cited were indicative of a fatal defect of the entire application for legal fees. However, the Court ruled that a thorough analysis of the attorney's bills and records was required to be made by the tenant's lawyer, who was also required to make specific objections to time charges in order to properly challenge landlord's application for legal fees. This, the tenant had not done. The Judge stated that the tenant failed to establish that there is a customary fee customary fee, n the fee level determined by the administrator of a dental benefits plan from actual submitted fees for a specific dental procedure to establish the maximum benefit payable under a given plan for that specific procedure. for summary proceedings such as this case. In addition, the tenant had made an insufficient showing that any question of fact exists as to reasonableness of the landlord's attorney's fees. The Judge also stated that since he tried this case on the merits on the merits adj. referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers , he observed that this was not simply a run-of-the-mill summary proceedings. Judge Hummel also stated that while ruling that a hearing was not necessary in this case, it did not relieve him of his obligation as a judge to examine the landlord's counsel fee request and to assure himself that the request was reasonable. The Court clearly has the authority to determine if all or part of the billing appears excessive and must be disallowed. The Court then examined the landlord's attorney's application and concluded that the hours expended in preparing post trial memoranda were excessive. The Judge evaluated the issues embraced by the memorandum and decided that, even considering the complexity of the issues involved, the amount of time billed was clearly excessive. As a result, the Judge, in his discretion, disallowed two-thirds of the fees generated by the landlord's attorney in preparation of post trial memorandum, and also eliminated some double billing which occurred when both a partner and an associate billed for the same legal research, the same interoffice conferences and for the same review of post-trial memorandum. The Court decided that 27 hours spent in preparing the post-trial memorandum was a reasonable amount of time for this service, reduced the attorney fee application accordingly, and granted the application for landlord's attorney's fees for the balance. Thus, even if a landlord is entitled to reimbursement for its legal fees, and even if a hearing on the issue of the reasonableness of the fees is not required, the court itself will undertake the calculation to ensure that the legal fees being sought are reasonable. (Edward L. Schiff is a real estate partner in the Manhattan law firm of Hartman & Craven, LLP LLP - Lower Layer Protocol .) |
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