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174 Mott Group, LLC v. Lucky 168 Rest. Corp. 2/14/08


Index No. 085184/07

Hearing: 2/14/08


MOTT GROCP, LLC, L&T  Petitioner,



370 Broome Street New York, NY 10012

A Restaurant known as “Jazzi Wok” Running 24 Feet along Broome Street and 30 feet along Mott Street and the basement thereat Respondent.


Following a bench trial held in this commercial nonpayment summary proceeding, I granted petitioner a final judgment of possession and a money judgment in the amount of $92,459.22, plus costs and disbursements, and dismissed respondent’s counterclaim and ordered a hearing as to petitioner’s reasonable attorney fees. (Decision dated Jan. 15, 2008). The hearing was held before me on Febmary 14,2008.


Petitioner commenced this proceeding on or about September 5,2007. In its answer, respondent denied the allegations set forth in the petition and interposed five affirmative defenses (inaccurate description of the subject premises contained in the pleadings, improper service of the predicate demand, 110 additional rent owed as to the basement premises, petitioner’s failure to present it with bills for the real estate taxes. and constructive eviction) and a counterclaim for constructive eviction, seeking $250,000.

The record reflects that respondent’s motion tor an order dismissing the proceeding was denied by another judge of this court in a decision and order dated December 5, 2007.

Trial commenced on January 2,2008 and ended January 7,2008. Petitioner called one witness on its direct case and one witness on rebuttal. Respondent called one witness.

Admitted in evidence at the trial were the parties’ pertinent leases, paragraphs 66 and 63 of which provide that “[i]n the event the landlord successfully brings an action or special proceeding … [it] will pay to the landlord, as a consequence of such action or proceeding, the reasonable attorney’s fees incurred by the landlord, but in no event less than S600.00 for each action or special proceeding.” Following the rendering of my January 14 decision and order dated January 14,2008, respondent moved by Order to Show Cause dated January 29,2008, for an order setting aside the verdict, now submitted for decision. II. FACTUAL FINDINGS There being no issue that petitioner successfully brought the instant special proceeding against respondent, petitioner is entitled to reasonable attorney fees.

Adam Leitman Bailey, petitioner’s trial attorney and, since 2000, principal of his own firm and before that an associate at two other Manhattan landlord/tenant firms, credibly described his firm’s billing procedures and detailed the work performed by him and others on the instant matter.

Based on Bailey’s testimony and the documents admitted in evidence (Pet. Exhs. 1,2), I find that the fees sought, including $2,920 for fees incurred in opposing respondent’s motion for an order setting aside the verdict and seeking the instant fees, are reasonably related to the work performed, except for the following: (1) $35 of the $70 charge for what could not have taken more than six minutes in leaving a message for respondent’s counsel on September 24,2007; (2) $20 for duplicate billing of the preparation of a stipulation of adjournment on September 28, 20~7; (3) $900 of $1,050 charged for mere)’ studying respondent’s order to show cause on October 23 and 30, 2007; and (4) $400 of$630 charged for drafting a notice to admit on December 28, 2007. (Pet. Exh. 2). I also observe that while the invoice dated September 1,2007 reflects a total ofS2,835, the only charges appearing thereon total $242.50.

Properly included here are paralegal fees, the fee in connection with a witness subpoena, and copying fees. (See Cioffi v Sew York Community Bank, 465 F Supp 2d 202,217 [EDNY 2006], relying on LeBlanc-Sternherg ‘ Fletcher, 143 F 3d 748, 763 [2d Cir1998] [attorney’s fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged (0 their clients.”]).


For all of the foregoing reasons, $20,643 is awarded to petitioner as reasonable attorney fees, with statutory interest from January 15, 2008. The clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the court.

Barbara Jaffe, JCC

DATED: February 27,2008

New York, New York


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