FACTS AND UNDERLYING BACKGROUND [*2]

This Civil Court action involves a dispute over legal fees that spans a period of nearly eight (8) years. The deterioration of the attorney-client relationship and the legal action that ensue, often reveal acts and omissions by both parties that requires judicial intervention and scrutiny.

The particulars of this dispute unfolded in this sequence of events. The Plaintiff, THANIEL J. BEINERT, is the senior attorney in the LAW OFFICES OF THANIEL J. BEINERT (hereinafter referred to as "BEINERT"), and is admitted to practice law in the State of New York. The Defendant, INNA LITINSKAYA (hereinafter referred to as "LITINSKAYA"), is a resident of the State of New Jersey.

Based on the record, Alex Skrilivetsky (hereinafter referred to as "ALEX") the fiancé of the Defendant, referred her to the LAW OFFICE OF THANIEL J. BEINERT for legal representation based on the fact that the aforementioned law office had successfully defended him in his divorce action. According to the parties, ALEX, LITINSKAYA and BEINERT participated in a meeting at the law office where the parties discussed the legal action proposed by BEINERT to remove tenants from a residential apartment in Brooklyn.

At this stage, it is appropriate to divulge the factual history of a divorce action between LITINSKAYA and her former spouse, Mark Litinsky, in the State of New Jersey. The factual history as presented by BEINERT in documentary evidence admitted as Court Exhibit "1" disclose these facts.

In or about August 7, 2002, LITINSKAYA filed for a divorce against her husband, Mark Litinsky, in the Superior Court of New Jersey in the Chancery Division of the Family Part in Bergen County, New Jersey. Issue was joined by the service and filing of the Defendant's answer in or about November 3, 2002.

On October 17, 2003, the Hon. Ellen L. Koblitz, the presiding judge over the above action, dismissed the Defendant's answer and his supporting defenses, and granted LITINSKAYA a Final Judgment of Divorce. The Final Judgment of Divorce, subsequently subsumed by an Amended Final Judgment of Divorce, in addition to the resolution of issues of equitable distribution, child support, and visitation, provides, in relevant part, as follows: "Plaintiff shall receive all title and interest in the condominium located at 4050 Nostrand Avenue, Apartment PH-C, Brooklyn, New York and Judgment is (sic) hereby entered in her favor " (See Exhibit "A" in the BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR CERTIFICATION UNDER CPLR §2105-Court Exhibit "1"). The Superior Court appointed Richard Weiner, Esq., attorney-in-fact, to execute and file the New York State Deed and the other recording documents mandated by NY law to complete the transfer of the property to LITINSKAYA. It is irrefutable and undeniable that the deficiency in the aforementioned legal description of the property in the decree is the catalyst for the controversy in this case.

On April 23, 2004, the Plaintiff Law Office and the Defendant executed a General Retainer which provided, in relevant part, as follows: The Defendant hereby retains the Plaintiff Law Firm "for the eviction of tenants located at 4050 Nostrand Avenue, Apartment PH-C, Brooklyn, New York, for a flat fee of $3,000.00 payable as follows: $1,500.00 down and the balance of $1,500.00 due in 30 days on May 23, 2004". A copy of the General Retainer is admitted into evidence as Plaintiff's Exhibit "1."

In correspondence dated April 25, 2004, prepared by BEINERT on behalf of LITINSKAYA, [*3]the occupants of the subject premises, the former in-laws of LITINSKAYA, Vladimir and Rimma Litinsky, were notified that on January 12, 2004, the Superior Court of New Jersey granted her exclusive ownership of the apartment. A copy of that correspondence is enclosed in Court Exhibit "1". The notice acknowledged their rights to occupancy, claimed that they were month-to-month tenants and that they were required to pay a monthly rent in the sum of $3,500.00. Further, the notice provides that all future rent payments and the new security deposit of $3,500.00 were to be made payable to BEINERT, as attorney, and sent to the Plaintiff Law Office.

Subsequently, BEINERT contacted Vladimir and Rimma Litinsky by telephone and according to the evidence, the couple had retained an attorney after service of the above notice and they referred BEINERT to their attorney, Brian M. Rattner, Esq., for all matters pertaining to the apartment. It is significant to mention that Brian M. Rattner, Esq., was the same attorney that represented the Defendants' former spouse, Mark Litinsky in the aforementioned divorce action. According to the record, the two attorneys had a conversation in which Brian M. Rattner, Esq., claimed that the tenants had a long-term lease agreement executed prior to the ownership of LITINSKAYA and were not subject to eviction. BEINERT represented that Mr. Rattner threatened to keep the tenants in the apartment for over ten (10) years (BEINERT, Transcript at 25, lines 12-25; at 26, lines 1-25; at 27, lines 1-9).

After a meeting between BEINERT and LITINSKAYA, according to the testimony of BEINERT, the parties executed a second Retainer Agreement admitted into evidence as Plaintiff's Exhibit "2." The new Retainer Agreement, dated May 10, 2004, contained the following relevant provisions; namely, "(1) the primary obligation of this firm will be to represent you in regards to the eviction of the tenants in said property (4050 Nostrand Avenue, Apartment PH-C, Brooklyn, New York)". The firm agreed to perform the following services: "(1) filing an Order to Show Cause in New Jersey Superior Court to have any existing Leases for the premises declared null and void; (2) make court appearances in New Jersey, if necessary; (3) file appropriate documents for the eviction of the tenants in Landlord and Tenant Court in Brooklyn; and (4) make court appearances in Landlord-Tenant Court in Brooklyn, if necessary".

The other relevant provisions, mainly the payment of legal fees, provides for the following hourly rates: "THANIEL J. BEINERT - $300.00/hour, Attorneys - $250.00/hour, Paralegals- -$85.00/hour, Law Clerks - $50.00/hour and Secretaries- $30.00/hour." The other relevant provisions that involves the payment of the legal services states that "you agree to pay us such additional fees and to reimburse us for our advances on your behalf that may be due from time to time, not later than 15 days from the date that we shall submit a bill to you for same. If an amount due to us is not paid within 15 days after our statement to you, interest at a rate of 12% per annum or interest at the prevailing statutory rate as set forth in the Civil Practice Law and Rules, shall be added to the balance due to us."

"All interim retainers and other balances billed are due within 15 days of the date of the invoice or billing statement. The firm applies interest charges at a rate of 12% per month with respect to any balances which are not paid within 15 days of the date of the invoice or billing statement".

"In the event any bill from this firm remains unpaid beyond fifteen day period, the client agrees that this firm may withdraw its representation, at the option of the firm". The firm also reserved the right to suspension of any work or services. [*4]

The Retainer Agreement, as is customary and standard in the legal industry, "makes no representation, express or implied, concerning the outcome of the litigation". Likewise, the agreement describes the mandatory provisions regarding fee disputes between the parties and the client's rights to fee dispute arbitration. The document itself and the testimony of BEINERT contends that LITINSKAYA acknowledged that all the terms and conditions had been reviewed, understood and approved by her. Since Russian, and not English, is the primary language of the Defendant, it is questionable whether the Defendant understood all of the terms of the agreement. After the Defendant was inept in her response to her own attorney's questions on direct examination in her case-in-chief, this court insisted that the Defendant use an official Court ordered Russian interpreter. The Retainer did not contain an affidavit from an official Russian interpreter that the terms and conditions were explained to the Defendant.

With the authorization, consent and at the alleged behest of the Defendant, the Plaintiff Law Firm submitted the first Order to Show Cause to the Superior Court of New Jersey before the Hon. Ellen L. Koblitz returnable on July 16, 2004 seeking a declaration that the lease agreement for the Brooklyn apartment be deemed null and void.

In what has been referred to as a Letter Brief to the Judge Koblitz, along with the original Order to Show Cause, the following evidence was presented to the Superior Court: the Affidavit of LITINSKAYA, which contained 27 paragraphs and Exhibits "A" through "F." The exhibits contained the following evidence: Exhibit "A" - Amended Final Judgment of Divorce; "B" - the condominium unit Deed, dated April 20, 2004, transferring the condominium unit from Richard Weiner, Esq to LITINSKAYA and all of the transfer documents of the City and State of New York including the Property Owner Registration, the New York City RPT, the Compliance Affidavit, the NYC Transfer Form (P-5217), and the NYS TP584; Exhibit "C" - a Lease executed by and between Mark Litinsky and Vladimir and Rimma Litinsky, dated April 18, 2002 for a period of ten (10) years which commenced on May 1, 2002 and terminated on April 30, 2012 at a monthly rent of $590.00 and a Memorandum of Lease, dated March 25, 2003, between the same parties; Exhibit "D"-a Transcript of Decision, dated December 9, 2003 before the Hon. Ellen L. Koblitz; Exhibit "E"- a Certification in Opposition to the Motion by Mark Litinsky; Exhibit "F" -Transcript of Decision, dated February 20, 2004 before the Hon. Ellen L. Koblitz; Exhibit "G" - a Declaration and Endorsement Page, dated February 27, 2004, of the recordation and filing of the Memorandum of Lease between Mark Litinsky and Vladimir Litinsky. The first submission by BEINERT did not require a court appearance and the billing records of BEINERT substantiate this fact. The BEINERT law firm then settled a proposed Order on notice for approval by the court, similar to the practices in the Supreme Court in Kings County, and as shown in Court Exhibit 1, the Order to Show Cause was denied. Judge Ellen L. Koblitz explicitly declined to execute those provisions of the order that declared the lease agreement null and void.

The Letter Brief to Judge Koblitz with a supporting Order to Show Cause claimed that the Superior Court had the authority to declare that the lease agreement null and void based on the fact that the lease agreement was dated prior to the divorce but recorded four (4) months after the divorce decree was entered by the Superior Court. BEINERT further argued that the prior finding of the Superior Court, unsupported by any evidence or record, that "the tenants did not pay rent" and that the lease was executed by Mark Litinsky and his parents to willfully and intentionally defeat [*5]LITINSKAYA'S rights to possession, were further grounds for the Superior Court to void the lease agreement between the parties.

Subsequently, the Plaintiff Law Firm submitted a second letter as a supplement to the Letter Brief, dated July 8, 2004. The Law Firm argued that the Superior Court had "continuing jurisdiction and control to enforce judgments and order pursuant to R:1:10 while an appeal is pending and prior to appellate division Therefore, jurisdiction herein has been acquired and this court may enforce and modify the Final Amended Judgment of Divorce entered in this matter . Furthermore, pursuant to New Jersey Court Rule 1:10-3, a litigant can seek relief for the enforcement or a judgment based on a claim for equitable relief". Moreover, LITINSKAYA, "seeks the enforcement and modification of paragraph 7 of the Final Amended Judgment of Divorce which awarded her full title and interest in the condominium located at 4050 Nostrand Avenue, Apartment P-C, Brooklyn, New York 11235 The Defendant has failed to comply with this portion of the Final Amended Judgment of Divorce by creating a fraudulent lease for said apartment after final judgment was entered naming his parents as tenants. To date, Defendant's parents still occupy and refuse to vacate said apartment".

In opposition to the Supplemental Letter, dated August 2, 2004, Mr. Litsinsky submitted his own affidavit of facts. The opposition papers assert the validity of the lease, deny any fraud by Litinsky, assert that the filing of the lease with Freehold Abstract in March 2003 and then its subsequent recordation dated February 27, 2004, is evidence that the lease agreement is valid. Litsinsky also asserted that the Landlord & Tenant Court in the Civil Court in the City of New York in the County of Kings is the proper venue for the removal of the occupants of the subject premises. Litinsky explains the facts surrounding the execution of the lease agreement and the vindictive intent of his ex-wife to evict his elderly parents. He also produced a letter, dated September 28, 2001, in which LITINSKAYA notified the Board of Directors that her in-laws were given authority to "speak and elect on my behalf at the meetings of the Board, to participate in different activities of the house."

The Plaintiff also presents the transcript of the August 4, 2004 hearing before Judge Koblitz. This was the first court appearance of the Plaintiff Law office in the New Jersey action in which Judge Koblitz made an unqualified pronouncement to the Plaintiff Law firm that the New Jersey Superior Court did not have the jurisdiction to grant the relief sought. (Hearing Transcript at 14, lines 9-17; at 15, lines 4-15; at 16 , lines 1-25; at 17, lines 1-25; at 18, lines 1-7 (Court Exhibit 1-Exhibit "J").

In an Order for Post-Judgment Modification and Enforcement, the Hon. Ellen L. Koblitz denied the relief based on the lack of jurisdiction. In the proposed settle order, she once again explicitly declined to execute those provisions of the proposed order that declared the lease agreement null and void and in her own handwriting wrote "no jurisdiction".

By Notice of Motion entitled RECONSIDERATION OF PLAINTIFF'S REQUEST FOR DECLARATORY(sic)/ENFORCEMENT JUDGMENT AND/OR AMPLIFICATION OF THE JUDGMENT, returnable on September 24, 2004, BEINERT submitted a Memorandum of Law which argued that the New Jersey Court had the authority to amplify its Judgment and that equitable considerations compelled the court to grant the relief. The Memorandum of Law consists of nine (9) pages and is accompanied by a supporting Affidavit from LITINSKAYA and a proposed Order granting the relief. [*6]

An Attorney's Affirmation in Opposition to the Motion for Reconsideration was submitted by Brian M. Rattner, Esq., on behalf of Mark Litinsky reiterating the identical arguments in the first motion except for a new demand for attorneys fees in the sum of $2,500.00. In addition, the opposition contained a sworn statement by Vladimir Litinsky reiterating the validity of the lease agreement and produced for the first time multiple rent receipts executed by LITINSKAYA in the sum of $590.00 from the months of April 1, 2000 through December 31, 2000, from January 1, 2001 through March 31, 2001 and from January 1, 2002 through April 30, 2002.

BEINERT, by Reply Affirmation of Patrick Kessell, Esq., claimed that the court record showed that the tenants never paid any rent to their son and sought to use a statement made by the Judge Koblitz as proof of that fact. His arguments appeared to shift the liability to the court for the failure of the divorce attorney to include in the decree that the transfer of the property was free and clear of any encumbrances including the lease since the court was unaware of the alleged ten-year lease. BEINERT claimed that the court had the ability through its equitable distribution of the marital estate between the parties to declare the lease agreement null and void.

In an Order, dated November 9, 2004, the motion was again denied. The court specifically found that contrary to the claims asserted by the Plaintiff law firm, the "findings and decisions in [the] divorce are absolutely clear;" thereby defeating any claim by the Plaintiff law firm that the divorce decree was ambiguous or neglected to contain the specific language of the leasehold interest.

The above record of the New Jersey proceedings certified pursuant to CPLR §2105 by the Plaintiff, THANIEL J. BEINERT, was admitted into evidence over objection as Court Exhibit "1". The Plaintiff produced sufficient evidence to this court to substantiate its claim that BEINERT could certify as true and accurate the New Jersey divorce decree and other records.

The legal fees incurred by LITINSKAYA from the first meeting between the parties through and including the date of the final court appearance in New Jersey culminated into twenty (20) bills for legal services dated May 10, 2004 through and including November 17, 2004 (Plaintiff Exhibits "3A" — "3T") which as shown below and on the annexed Schedule "A" were for $26,216.00..

As of the last statement of the Defendant's legal fee account, dated September 9, 2004, the Defendant allegedly owed the sum of $15, 211.00 to BEINERT (Plaintiff's Exhibit "4").

The parties, during the trial, acknowledged payments of $3,000.00 plus additional payments in the sum of $1,000.00 (Plaintiff's Exhibit "6"-check dated October 8, 2004) and the sum of $1,500.00 (Plaintiff's Exhibit "8" -check dated November 5, 2004) for a grand total of $5,500.00.

In written correspondence dated September 29, 2009, BEINERT agreed to a reduction in the legal fees for $15,211.00 to $7,500.00 (Plaintiff's Exhibit 5) after complaints by the Defendant of overbilling.

The Defendant terminated the attorney-client relationship in a written Notice of Termination to the Plaintiff dated November 19, 2004 (Plaintiff's Exhibit "9").

Subsequently, the Plaintiff, in written correspondence, dated November 29, 2004, confirmed the mutual assent to the reduction in the legal fee bill to one-half of the sum due and owing. The letter states that " [d]uring our conversation, you informed me that you were satisfied with Patrick's handling of [your] court appearance and with the firms' overall work on your case. Therefore, I view [*7]your letter as a mere attempt to avoid paying the outstanding legal fees due to this firm I refer you to your signed retainer, more particularly the section related to interest charges and collection costs that would accrue against you if you choose not to pay your bill " More important, for the analysis below, the letter also states: "You may recall that upon receipt of the recorded lease from your ex-husband's parents, we specifically advised you that this case was complex and extensive legal fees would be incurred over time. Your letter that we have mishandled your case and overcharged you is without merit." (Plaintiff's Exhibit "10")(emphasis added).

After the willful refusal of the Defendant to pay the legal fees, the Plaintiff Law Office commenced the instant Civil Court action.

In or about May 5, 2005, the Plaintiff Law Firm served a Summons and Verified Complaint seeking a judgment against the Defendant in the sum of $18,175.00. The Respondent appeared by the Law Office of Steven Garfinkle and interposed an answer that contained six affirmative defenses including waiver by written agreement between the parties, alleged violations of New Jersey law, unconscionability, duress, fraud and overcharge. In addition, the answer alleges as a first cause of action claims of legal malpractice, as a second cause of action claims of fraud, as a third cause of action claims of fraud, as a fourth cause of action claims of fraud, and as a fifth cause of action a claim of a breach of fiduciary duty.

It would appear that the parties engaged in motion practice to amend the pleadings and subsequently, the Plaintiff served an Amended Summons and Complaint which avers as a first cause of action a claim of breach of contract and as a second cause of action claims of an account stated. Annexed to the Complaint are parts of the relevant evidence admitted in this trial including, but not limited to, the first Retainer Agreement, the second Retainer Agreement, the legal fee bills and various correspondence between the parties.

The court record reflects that shortly after this answer was served and filed, the Law Office of Steven Garfinkle was discharged and/or relieved as counsel. Afterwards, the Defendant retained the Law Offices of Cherny & Podolsky, PLLC, and this new law firm served a Notice of Appearance and amended Verified Answer that contained 23 affirmative defenses and 5 counterclaims (the answer does not assert any counterclaims but instead avers "the first count"; the court finds this error inconsequential and not prejudicial to the Plaintiff pursuant to CPLR §2001 and deems the "counts" as counterclaims.)

The Plaintiff, by reply, denied the counterclaims and asserts breach of contract by the Defendant.

THE APPLICABLE LAW

Since the inception of our modern legal system, the legal profession has regulated its own members. The legal profession establishes the policies, practices, procedures and regulations that are obligatory to obtain and maintain a license to practice law; and the acts and/or omissions that meet a well defined threshold for the revocation of a license to practice law. To implement this system and [*8]as a necessary corollary, it has long been held that it is the traditional authority' of the courts to "supervise" the charging of legal fees under the court's inherent statutory power to regulate the practice of law (Solow Management Corp. v. Tanger, 19 AD3d 225, 797 N.Y.S.2d 456 (1st Dept, 2005), Matter of First Nat'l Bank of East Islip v. Brower, 42 N.Y.S.2d 471, 474 (1977)).

The ultimate question of the reasonableness of attorney's fees, this court, like others, recognize that great deference must be given to parties to chart their own course in litigation as well as to stipulate to the amount of legal fees. The court is also cognizant of the fact that although deference is given to the parties to chart their own course in litigation, that deference is tailored only when there is an absence of conflict with the public interest. See WWW Associates, Inc. v. Frank Giancontiery, et al., 77 NY2d 157, 567 N.Y.S.2d 440, 566 N.E.2d 639 (1990); Matter of Malloy, supra.

An adversarial hearing is mandated to determine the reasonableness of attorney's fees when questions of fact exist related to the reasonableness of the fee charged (Kumble v. Windsor Plaza Corp., 128 AD2d 425, 512 N.Y.S.2d 811 (1st Dept, 1987) appeal dismissed, 70 N.Y.S.2d 693. When a party legitimately challenges the amount claimed and the legal services performed, a court's award of counsel fees may only occur following an adversarial hearing where counsel fees must be proved and the opposing party asserts the right to cross-examination (Weinberg v. Weinberg, 95 AD2d 828, 467 N.Y.S.2d 20 (2d Dept, 1983); Badenhop v. Badenhop, 84 AD2d 773, 444 N.Y.S.2d 111 [2d Dept, 1981]. The converse is also true as Judge Acosta so aptly stated in Dupuis v. 424 East 72 Street Owners Corp., 9 Misc 3d 1121(a) 2005WL2741961 (N.Y.Supp)) : a court is not required to hold an adversarial hearing where no legitimate dispute exists regarding the attorney fees in question. Old Parts, Inc. v. G.E.B.M. Intern., Inc., 170 AD2d 3892, 566 N.Y.S.2d 280 (1st Dept., 1981) (I.A.S. Court did not abuse its discretion in awarding attorney's fees without first conducting an evidentiary hearing where the amount of fees sought was not challenged.)

It goes without saying that in the instant matter, it is undisputed that the Defendant challenged the reasonableness of the legal fees. This fee dispute should not be confused with the rights of a prevailing party to recovery of legal fees in an action or proceeding authorized by statute or by contract. In the latter, the burden is on the attorney fee applicant to establish the prevailing hourly rate for the work produced and reasonableness of the services rendered for such fee (Gutierrez v. Direct Mktg. Credit Servs., Inc., 267 AD2d 427 [2d Dept, 1999] [Internal citations omitted]). In the former, the burden is on the attorney to establish the reasonableness of the fees charged as shall be discussed below.

The court's ultimate responsibility is to ascertain the relationship between the amount agreed upon by the parties and the legal services actually performed by the attorney. Stated differently, the ultimate determination by the court will center on whether the fees in question are reasonable and do the attorney's fees directly relate to the necessary work performed by counsel in litigating the underlying matter. See Matter of Malloy, 278 NY 429, 17 N.E.2d 108 (1938). It is well settled that attorneys are entitled to a reasonable fee for legal services rendered on behalf of their client, and in cases where the parties' obligations are clear, courts should enforce the contract terms in the interest of not undermining the "stability of contractual obligations." However, there is statutory and case authority that regulate even those contractual rights between the parties.

Section 1200.11 [a/k/a] DDR 2-106 [-] Disciplinary Rules [DR] of the Code of Professional [*9]Responsibility [CPR], 22 N.Y.C.R.R. §1200.11 and Rule 1.5(a) — American Bar Association Model Rules of Professional Conduct [1989 E.D.] state that "(a) A lawyer shall not make an agreement for, charge, or collect an excessive fee or a legal fee or expense. A fee is excessive when, after a review of the facts, a reasonable lawyer would be left with a definite and firm conviction that a fee is excessive. The factors to be considered in determining whether a fee is excessive may include the following: (1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly; (2) the likelihood if apparent or made known to the client, that the acceptance of a particular employment would preclude other employment by the lawyer; (3) the fee customarily charged in the locality of similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (Rule 1.5 Fees and Divisions of Fees, Part 1200, Rules of Professional Conduct). The facts and circumstances of each individual case will dictate which of these factors are instrumental in determining a reasonable fee. Similarly, the factors used are not weighed equally, but are dependent on the facts and circumstances of the particular case.

The New York State Bar Association by resolution adopted by its House of Delegates on January 29, 1993, acknowledged that the Disciplinary Rules (DR) of the Code of Professional Responsibility (CPR) duly adopted as joint rules and jointly promulgated, under 22 N.Y.C.R.R. Part 1200 by all of the Appellate Divisions of the Supreme Court of the State of New York, effective September 1, 1990, as amended to date, last revised, effective June 30, 1999 and November 11, 2001, are applicable to all attorneys duly admitted to practice law in the State of New York.

Federal and State Court authority have consistently held that an attorney is entitled to an award of legal fees that compensates the attorney for the time reasonably expended in the lawsuit commonly referred to as the Lodestar method and have determined that the award for attorneys fees entails simply the multiplication of the number of hours reasonably expended by a reasonable hourly rate; a procedure that subsumes many of the factors described above. Specifically, our New York Courts have employed these factors to determine reasonable attorney fee awards in New York City. See McGrath, et al. v. Toy's R Us, 3 NY3d 421, 821 N.E.2d 510, 788 N.Y.S.2d 281 (2004).

As Justice Ruben, writing for the majority in Rahney v. Blun, 95 AD2d 297, 466 N.Y.S.2d 350 (2d Dept, 1983), stated that "there are many parameters that affect the value of legal services and which, therefore, must be considered by the court in evaluating a fee request". Although the Rahney Court specifically involved a recipient's appealing a termination of food stamps and claimed attorney's fees as the prevailing party, the case is often cited as the seminal case for the standard of the propriety of an award of legal fees and expenses.

In determining an award of attorney's fees, there must be a determination of the reasonable hourly rate for each category of service that has been charged. As a general rule, it is well-settled that the reasonable hourly rate should be based on the "customary fee charged for similar services by lawyers in the community with like experience and of comparable reputation to the attorney seeking the award". Experience, of course, includes not only the number of years in practice but also the nature of the practice engaged in by the specific attorney. Rahney v. Blun, supra.

Justice Howard Lane, in an admirable analysis in Francis v. Atlantic Infiniti, Ltd., 34 Misc [*10]3d 1221(A), 202WL398769 (N.Y.Sup.), 2002 N.Y.SlipOp. 50198U, defers to the case law in the Second Circuit, in particular, the Eastern District of New York in regards to the issue of reasonable attorney's fees. His analysis deals with the various fee shifting statutes unlike in the instant action but is applicable nonetheless. This court will rely on the Circuit Court in the Eastern District and other decisions of the Appellate Division Second Department which adopts those same guidelines for the prevailing market rate for attorney's fees based on the number of years of experience. See also Goldman v. Rosen, 10 Misc 3d 1065(a), 814 N.Y.S.2d 561, 205WL3542398 (N.Y.City Civ. Ct.), 2005 N.Y.SlipOp. 521, 52(U) in which Judge Liebowitz adopted the Lodestar method of calculation of legal fees in a residential summary proceeding.

In determining the reasonable hourly rate, the court must consider the nature of the services rendered (Newman v. Silver, 553 F. Supp. 485, 496 (S.D.NY 1982); Kaufman v. Diversified Industries, Inc., 356 F. Supp 827 (S.D.NY 1973); Matter of Snell, 17 AD2d 490, 235 N.Y.S.2d 855, 853 (3d Dept, 1962). The court is mandated to distinguish between legal work per se, investigation, clerical work, confirmation of facts and statistics, and other work which can often be accomplished by non-lawyers but may be performed by a lawyer because he or she is a solo practioner. Such value is not enhanced just because a lawyer does the work. Moreover, we must distinguish between the hours expended for in court services and the hours expended for out of court services.

Furthermore, an attorney's experience or skills is a factor to be considered by the court in awarding reasonable attorney's fees. For instance, an experienced and skillful attorney might accomplish a particular task in a very short period of time whereas another inexperienced or lesser skilled attorney may accomplish the same task in a much longer period of time.

The Rahney Court, as this court, must determine if the fees were exorbitant or the time devoted in completing them is unnecessarily high. Based on such facts, the court may refuse further compensation or grant that compensation quite sparingly. Like the Rahney Court, once there is a determination to eliminate hours of service, it is imperative to identify those hours and articulate a legal reason for their elimination.

Just as important to the court's inherent and statutory power to regulate the practice of law, both federal and state courts approve of the inherent power of the judiciary to "employ" its own knowledge, experience and expertise in its determination of the time required to perform similar legal services and the reasonableness of the claimed fee. The knowledge, experience and expertise of this court in residential and commercial real estate is fitting and appropriate in this case. In making such an evaluation, the court itself is an expert and may make an independent judgment of the reasonable value of an attorney's services. Newman v. Silver, supra. (See also Schodnue v. Lek, 283 AD2d 200, 724 N.Y.S.2d 305 (App Div., 1st Dept, 2001) in which the court approved of the use of a Referee's own knowledge, experience and expertise to assist in determining the time required to perform legal services and to determine the reasonableness of the claimed fee. See also Matter of Rahney v. Blun, 95 AD2d 294, 300; Jordan v. Freeman, 40 AD2d 656, 657).

Recently, the Appellate Division, Second Department had the opportunity in Gamache, et al. v. Steinhaus, et al., 7 AD3d 525, 776 N.Y.S.2d 310 (App Div, 2nd Dept, 2004) to decline to enforce the hourly rate provision of a retainer agreement because the Plaintiff's counsel failed to show that $300.00 per hour was a reasonable hourly rate for the type of the work they performed and to show the reasonableness of the amount of hours consumed by the individual attorneys. The court [*11]specifically found that the "reasonable hourly rate [for an attorney] shall be based on the customary fee charged for similar services by lawyers in the community with like experience and of other comparable reputation to those by whom the prevailing party was represented." (Getty Petroleum Corp. v. G.N. Triple S. Corp., 187 AD2d 483-484, 589 N.Y.S.2d 577; see Gutierrez v. Direct Mktg. Credits Servs., 264 AD2d 427, 701 N.Y.S.2d 116; Matter of Raheny v. Blun, 95 AD2d 294, 466 N.Y.S.2d 350) Although an award of an attorney's fees is within the discretion of the court, such award must be based upon a showing of "the hours reasonably expended and the prevailing hourly rate for similar legal work in the community (Gutierrez v. Direct Mktg. Crediting Servs., supra at 428, 701 N.Y.S.2d 1116). As far as the Appellate Court was concerned, "the only information that the Supreme Court had before it to support the reasonableness of a $300.00 per hour fee was the attorney's own self-serving statement that they "regularly bill" at that rate. Thus, the record was devoid of truth as to the "customary fee charge" for similar services by lawyers in the community with like experience and of comparable reputation to those by whom the prevailing party was represented" (Getty Petroleum Corp. v. G.N. Triple S Corp., supra at 483-484, 589 N.Y.S.2d 577; see also Gutierrez v. Direct Mktg. Crediting Servs., supra).

The court concluded that "the record does not establish the reasonableness of the amount of hours which were collectively expended on this proceeding by the individual attorneys. Although both attorneys submitted brief summaries of their billable hours, they did not submit contemporaneous time sheets or adequately document how these alleged hours were accumulated (see Becker v. Empire of Am. Fed. Sav. Bank, 177 AD2d 958, 577 N.Y.S.2d 1001) (emphasis added). In particular, each attorney billed separately for the preparation of a Petition even though only one Petition was prepared and submitted". The court ultimately found that the Supreme Court improvidently exercised its discretion in awarding attorney's fees in the principle sum of $18,396.00. The Petitioners were entitled to attorney's fees but not for the sum demanded and not at the hourly rate charged (emphasis added). The case was remitted to the Supreme Court for a new determination in conformity with their decision citing Matter of Board of Elections of County of Westchester v. O'Rourke, 210 AD2d 402, 620 N.Y.S.2d 107.

In assessing attorneys fees, a court should second ascertain the nature and the extent of the services supplied by the attorney from a contemporaneous time sheet indicating the date, number of hours worked, an explanation of how the hours were spent (New York State Assn. for Retarded Children v. Carey, 711F.2d 1136; Cohen v. West Haven Bd. of Police Comrs., 638 F.2d 496) and identifying the specific claim to which the hours pertained (Hensley v. Eckerhart, 461 U.S. 50, 51 U.S.L.W. 4552, 4555).

Justice Lane conducted substantial research in the area of the reasonable hourly rate for attorneys and he described the rates in the Eastern District of New York as follows: "Luca v. County of Nassau, 698 F.Supp.2d 296 [E.D., NY, 2010]. The prevailing market rate for attorneys with more than 25 years experience in this area appears to be $350 to $400 per hour, proposed rate of $325 per hour [the prevailing rates for partners] Olsen v. County of Nassau, 210 U.S.Dist.LEXIS 9515, 2010WL376642, 4 [E.D., NY, 2010] ($375 through $400 per hour for partners found reasonable in case involving Title 7 in 1983 claims); Green v. City of New York, 210 U.S.Dist.LEXIS 296, 2010WL148128 [E.D., NY, 2010] ($300 per hour for partners in class action); Cruz v. Henry Modell & Co., Inc., 2008 U.S.Dist.LEXIS 25339, 2008WL905351, 10 [E.D., NY, 2008] ($325 per hour [*12]awarded in connection with claims of intentional discrimination pursuant to 1981, false imprisonment and negligence); Melnick v. Press, 2009 U.S.Dist.LEXIS 77609, 2009WL2824586, 9 [E.D., NY, 2009] (Current rate in E.D., NY is $200 to $375 per hour for partners in a charging lien case); T.S. Hauler, Inc. v. Cardinal, et al., 2011 U.S.Dist.LEXIS 9578 [E.D., NY 2011] (Between $200 to $400 for partners); Dupler v. Costco Wholesale Corp., 705 F.Supp.2d 231, 245 (n10) [E.D., NY, 2010] (finding the prevailing hourly rate for partners in the Eastern District of New York to be $300 to $400 per hour); Musical Productions, Inc. v. Roma's Record Corp., 2009 U.S.Dist.LEXIS 87546, 2009WL305260, 10 [E.D., NY, 2009] (finding the prevailing hourly rate for partners in the Eastern District of New York to be $200 to $300 per hour, but recognizing that amount might be outdated and that the actual amount might likely be higher; Wong v. Yoo, 2010WL4137532, 2 [E.D., NY, 2010] (awarding $375 to solo practitioner in Civil Rights case); Cruz v. Henry Modell & Co., supra, (concluding that $325 an hour was in line with the prevailing market rate in the Eastern District); Musical Productions, Inc. v. Roma's Record Corp., supra, 2009 U.S.Dist.LEXIS 87546, 2009WL3052632, 10 (between $100 to $250 for associates and approximately $100 for paralegals)". Even more recently in the Supreme Court, Nassau County in the Matter of the Application of Shiela Graves, et al. v. Doar, (the court found the hourly rate of $325 per hour was reasonable for attorneys with over 25 years experience and $85 per hour was reasonable for a paralegal), 2010 N.Y.SlipOp. 310, 51U [Sup. Ct., Nassau County, 4/16/10].

This court adopts the rationale not only of the Eastern District and the Appellate Division, Second Department but also Justice Lane's determination of the hourly rate. The hourly rate in Queens County is comparable to the hourly rate in Kings County. Accordingly, the hourly rate of $300 is reasonable for the Kings County community for an experienced attorney of 10 to 15 years; $250 per hour for 5 to 10 years; $225 per hour for 5 or less years and $85 per hour for a paralegal. The court will use these prevailing rates in calculating the instant award of attorneys fees.

It is well-settled that the law office is entitled to recover reasonable, identifiable out-of-pocket disbursements which are ordinarily charged to clients. As set forth below, we shall examine those expenses as well.

Lastly, a review of a pertinent provision of the professional rules, namely, Rule 1.1, entitled Competence, is applicable here and reads as follows: (a) a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation; and (b) a lawyer shall not handle a legal matter that the lawyer knows or should have known that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it. And lastly, a lawyer shall not intentionally: (1) fail to work the objectives of the client through the reasonably available means permitted by the law and these Rules; or 2) prejudice or damage the client during the course of the representation except as permitted or required by these Rules.

After a five-day non-jury trial, the court had ample opportunity to observe the demeanor and credibility of the witnesses. After carefully reviewing and assessing all of the evidence in this case and after the reading of the trial transcript, obtained with the consent of the attorneys for the respective parties, the court makes the following findings of fact and conclusions of law.

Although a determination as to the proper amount of an award for legal fees lies largely within the discretion of the court, the discretion is not unlimited. There are many parameters that affect the value of legal services and must be considered by the court in evaluating this action. Those factors are the hours reasonably expended, a reasonable hourly rate, computation of the Lodestar fee and adjustments to the Lodestar fee.

In general, attorneys are free to select a number of reasonable courses of action in prosecuting a client's case without exposing themselves to liability for malpractice or negligence. In this case, the court does not find that the Plaintiff's law office selected a reasonable course of action in prosecuting the claim in this action.

The first professional rule provides that a lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle without associating with a lawyer who is competent to handle it.

In this action, the first course of action for the Plaintiff law firm should have been to communicate with the attorney that handled the divorce action in New Jersey. Although Plaintiff did testify that he spoke to her and obtained her file, he never made any inquiry about the exclusion of the lease agreement or leasehold interest in the divorce decree. Any real estate attorney would have made a determination of any and all liens, tenancies, leases, encumbrances, claims, actions and exceptions to title that were subject to the transfer of the condominium to the Defendant. It is this court's opinion that the divorce attorney assumed responsibility for all rights, title and interest that the Defendant may have had in the subject property including any leases that may have been made subject of the transfer. But for the neglectful exclusion of such qualifying language in the transfer of this real estate located in Brooklyn, New York, the entire course of litigation undertaken by the Plaintiff's attorney would have been different or even non-existent.

Of equal importance, it is the opinion of this court that the course of action in the prosecution of the Defendant's right in the New Jersey Circuit Court was unreasonable and not in conformity with the Rule 1.1 of the Professional Rules. This court finds that the course of action in attempting to modify and/or declare the alleged lease agreement null and void was improper as a matter of fact and law.

The proper course of action would have been to commence a summary proceeding to recover possession of the subject apartment. The Housing Part of the Civil Court of the City of New York has been clearly granted statutory authority pursuant to RPAPL §235-c to declare the alleged twelve (12) year lease agreement at a monthly rent of $590.00 for the duplex Penthouse in Brooklyn unconscionable. RPAPL §235-c provides, in relevant part, as follows: "If the court, as a matter of law, finds a lease or any clause of the lease to have been unconscionable at the time it was made, the court may refuse to enforce the lease, or it may enforce the remainder of the lease without the [*14]unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result". As compelling, Section 2 of the statute provides that when it is claimed or appears to the court that the lease or any clause thereof may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its setting, purpose and effect to aid the court in making the determination. This is not a new statute. It is well known to those attorneys that practice Landlord and Tenant law. The statute was enacted in 1976, effective July 26, 1976, and is applicable to all leases regardless of when executed in this state. No evidence, testimonial or otherwise, was introduced to show that BEINERT retained or consulted a Landlord and Tenant attorney notwithstanding the fact that he stated he was a veteran in the Landlord and Tenant Court. Even those that are experts consult with others in decision-making particularly in the legal profession.

This court is in accord with the Defendant's claims that the proper venue to remove the tenants from possession was the Brooklyn Housing Part of the Civil Court of the City of New York and not the Superior Court in New Jersey. The Hon. Ellen L. Koblitz correctly instructed the Plaintiff law firm that the appropriate venue was New York based upon the fact that the property was located in New York, the occupants were residents of New York and were not parties to the divorce action. The judge was explicit that the tenants, in light of the evidence presented by both parties, may have some rights to occupancy.

Under New York law, both parties would have been given an opportunity to participate in an evidentiary hearing to determine the validity of the lease. LITINSKAYA could have presented expert testimony of a real estate broker and/or real estate appraiser to substantiate that the rental amount was a "sweetheart deal" and well below the fair market value for a comparable apartment of that size, condition and location. Of equal importance, LITINSKAYA would have been offered the opportunity to present evidence to prove that the sum of $590.00 did not reflect the fair market rent for the subject premises and that such a low rental was due to the prior ownership of the subject premises by the Defendant's former spouse. Evidence should have also been adduced to substantiate, as alleged by the Plaintiff law firm in the New Jersey Order to Show Cause, that the lease was intended to defeat LITINSKAYA's rights of possession contrary to the divorce decree. On the other side, the occupants would have been granted the statutory right to defend the lease, including but not limited to, the memorandum of lease dated March 25, 2003 that was sent to the title company for recordation, the lease itself and any other admissible evidence, testimonial or documentary, to substantiate its authenticity and its enforceability.

Furthermore, if BEINERT'S opinion of the Brooklyn Housing Court was that it is "pro-tenant", as stated in the trial transcript, BEINERT had the option to commence the appropriate action in the Supreme Court in Kings County. For example, BEINERT could have sought a declaratory judgment negating the validity of the lease; or an action in ejectment in the Civil Court provided the assessed valuation of the property was under our $25,000.00 jurisdiction limitation, and if so, alternatively, an ejectment action in the Supreme Court in Kings County. In fact, after BEINERT was discharged, Attorney Garfinkle commenced the appropriate action in the Supreme Court in Kings County, not in the Superior Court in New Jersey, and the parties amicably resolved the action within a relatively short period of time-two to three months as asserted by LITINSKAYA (LITINSKAYA transcript at 14, lines 4-25; at 144, lines 1- 25; at 145, lines 1-21). The resolution, as confirmed by [*15]the document admitted into evidence as Plaintiff's Exhibit "13," Mark Litinsky, the ex-spouse of LITINSKAYA, purchased the apartment from LITINSKAYA. The "repurchase" price for the condominium was based on the assessment of the fair market value of the unit as determinated by an independent real estate appraisal and factored in to the purchase price the sums due and owing in child support and maintenance arrears due by Mark Litinsky to LITINSKAYA.

Like the Rahney Court and its progeny including Francis v. Atlantic & Finney, Ltd., supra, the many factors above constitute a basis for a reduction in the Lodestar fee. Starting with the first factor, the novelty and difficulty of the question presented, this court has determined above that the course of action by BEINERT in prosecuting the rights of LITINSKAYA to possession of the Brooklyn condominium was imprudent. This action did not involve any novelty or difficulty. It was simply the commencement of a summary proceeding to recover possession of the unit and/or an action in the Supreme Court in Kings County to declare the purported lease agreement null and void or for ejectment.

The requisite skill to perform the legal services properly did not require a high level of expertise. An experienced and skillful Landlord and Tenant attorney could have accomplished the primary objective in this case in a very short period of time as was proven by Attorney Garfinkle. It is apparent to this court that Patrick Kessel, Esq. had limited expertise and experience, and those factors must be given great weight in considering the amount of time and labor expended by him. He had only practiced law presumably for 3 years. The court makes this evaluation based on a review of the legal fee bills and his work product; BEINERT did not produce any evidence of his training, background, skill or even past employment.

Not only did BEINERT utterly fail to produce his own resume or that of any of his associates, BEINERT also failed to produce or even testify about his own employees. He also did not justify the need of his associate to spend over thirty-eight (38) hours on a simple order to show cause. This action did not involve any extensive discovery, depositions, expert witnesses or motion practice other than a Letter Brief to the judge, a motion for what was termed a declaratory judgment, a motion for reargument and reply papers. The case did not require any novel or complex issue or even one that required expert proof except as stated above.

It is the opinion of this court that a review of the records clearly supports the finding of this court that Patrick Kessel, Esq. was a novice that lacked knowledge sufficient to properly represent LITINSKAYA in the proper forum. He spent an inordinate amount of time preparing a simple motion on a relatively simple, routine and uncomplicated case. Moreover, Patrick Kessel, Esq. and "J.S"., a third year law student, spent an inordinate amount of time due in great part to their inexperience. As the Defendant correctly argues, if this was such a complex legal case, would a managing partner and owner of the law firm with presumably 8 years of legal experience have delegated the responsibility of handing this case to a three year law student ("JS") who was responsible for the first order to show cause and to an associate with 3 years or less of legal experience and training who handled the second motion and the motion for reargument.

Even had BEINERT provided the appropriate support, guidance and supervision to his law student and associate by giving them the full benefit of his so-called expertise, the inordinate amount of time expended may have been minimal. The hours spent by JS and Patrick Kessel, Esq. were clearly excessive. As the court said in Rahney, counsel has a right to fair and just compensation for [*16]legal services rendered but is not entitled to compensation that creates a windfall. See also Arborhill concerned Citizen Neighborhood Association v. County of Albany, 522 F.3d 182, 193 [2d Cir., 2007]. It is totally inappropriate for a lawyer to learn his or her craft at the total expense of his or her client.

It is definitely questionable whether the associate attorney or the third year law student ever expended the time billed since no records whatsoever of any time sheets or supporting time records were produced at trial; only copies of the legal fee bills themselves were produced, which, as shown below, were problematic. Notwithstanding all of the legal research performed by "JS" and to a lesser degree, Patrick Kessel, Esq. on behalf of the Defendant, not one contemporaneous billing sheet was produced. As significant, no record was produced from WestLaw and/or Lexis for the legal research. Even if the BEINERT law firm was a monthly subscriber to these legal research engines, it is well known that the research sessions are explicitly documented at the end of the research session and all that is required is a "click" for the time sheets to print for that session. It is inexcusable that the legal research time was not documented at all and more offensive to this court, nothing at all was produced at trial.

Even more troubling and frankly, outrageous and disingenuous, the Plaintiff law firm improperly billed at an hourly rate of $250.00 for a third law student. The third year law student expended hours in legal research and preparing the motion paper for some 56.8 hours, well beyond the realm of reasonableness. This action is inexcusable and unreasonable. The third year law student should have billed at the hourly rate of $85.00 or the equivalent of a Law Clerks at $50.00/hour. This action constitutes clear "padding" of the legal fee bills and as demonstrated below, that rate has been properly reduced to $85.00 an hour.

Even giving the associate every possible benefit of the doubt, the work performed could have been performed in substantially less time and more efficiently by a more experienced, skilled and knowledgeable attorney. The total legal fee bill was for $26,216.00; the more skilled and seasoned attorney, THANIEL BEINERT spent a mere two and one-half hours on the case. While the court will not specifically reduce all of the numbers of billable hours, the court will reduce the Plaintiff's hourly rate to conform to the Eastern District fee amounts as stated above and some of the hours expended to compensate for the excessiveness, padding and inefficiency in this legal representation.

In addition, the testimony of the principle of the Plaintiff law firm was completely devoid of any evidence to support his own hourly rate of $300 per hour as a reasonable rate for the type of work performed on the Defendant's behalf. The only information that the court had before it to support the purported reasonableness of his $300 per hour was his own self-serving statement that it was contained in the Retainer Agreement and he argues that the court must enforce the terms of that agreement. His position is inopposite of the Appellate Division, Second Department ruling in Gamache, et al. v. Steinhaus, et al., 7 AD3d 525, 776 N.Y.S.2d 310 (App Div, 2nd Dept, 2004). Like the Gamache Court, the record here completely lacks any proof of the "customary fee charge for similar service by lawyers in the community with like experience and of comparable reputation" as BEINERT (Getty Petroleum Corp. v. G.M. Triple S Corp., 187 AD2d 483, 483-484, 589 N.Y.S.2d 577; Gutierrez v. Direct Mktg. Credit Servs., 267 AD2d 427, 701 N.Y.S.2d 116. See also the Matter of Rahney v. Blun, supra.)

Furthermore, BEINERT submitted no admissible evidence reflecting the training, [*17]background, experience and skills of any of the individual attorneys and paralegals who performed work in this action. In fact, BEINERT failed to even submit his own curriculum vitae to establish his hourly rate. His testimony was replete with a failed memory of the years of admission of his various associates, even the dates that they came to be employed in the law firm, their backgrounds, skills and other similar characteristics. (Beinhert transcript at 18, lines 1-25; at 19, lines 1-18). Thus, the Plaintiff law firm and its staff did not provide this court with one scintilla of evidence of the "experience, reputation and ability of the lawyer or lawyers performing the services." In fact, no such inquiry was made during the case-in-chief of the Plaintiff but instead was solicited by the Defendant during cross examination (Beinhert transcript at 18, lines 1-25; at 19, lines 1-18). Suffice it to say, the burden of proof is on the Plaintiff to prove entitlement to legal fees and not the Defendant.

The court finds that the Plaintiff's counsel has failed to satisfy its burden of establishing the prevailing hourly rate for legal services performed in Kings County or even in New Jersey. Counsel merely submits hourly rates set forth in the Retainer Agreement admitted into evidence as Plaintiff's Exhibit "2." No evidence of the reasonable hourly rates for Civil actions commenced in New Jersey and Kings County were ever produced- these are the only relevant communities the court should be considering to determine a fee award. (See Daimler Chrylser Corp. v. Carman, 5 Misc 3d 567, 569 [Sup Ct, Albany County, 2004]). Since the Plaintiff has not met its burden of proof on what fees are charged in New Jersey and/or in the Kings County legal community, the court, as stated above, will rely on the above analysis in determining the hourly rates that are reasonable in Kings County, that is, the county of proper venue.

The evidence substantiated that all three actions taken by the Plaintiff law firm in the New Jersey Circuit Court were denied. The record produced by BEINERT corroborates that the Judge Koblitz explicitly informed Attorney Kessel that she did not have jurisdiction to determine any legal rights with regard to the New York property. Both proposed settlement orders by the Plaintiff law firm were denied as well as the motion to reargue. Although the results obtained by lawyers are not dispositive of claims for legal fees, the results obtained are not irrelevant. It was not until the Defendant hired another attorney that the matter was ultimately resolved after two to three month; it is irrefutable that the transfer of the property was not recorded until eighteen months thereafter (LITINSKAYA at 144, lines 10-25; at 145, lines 1-22).

This court is of the opinion that the nature and scope of this case would have involved minor legal work with the exception of potential trial time and trial preparation time. Probably only one expert, a competent real estate broker and/or real estate appraiser, would have been required for the case. A simple case for a Landlord and Tenant Attorney; however, for others unfamiliar with Landlord and Tenant law, not so simple.

As to another factor, namely, the attorney's loss of opportunities for other employment that precluded employment by the lawyer of other cases, no evidence was elicited at trial that this case consumed any inordinate amount of time to the preclusion of other cases at the law office.

In regard to the initial fee customarily charged in the locality for similar legal services, this court finds that the fee initially charged at $3,000.00 for a simple holdover proceeding commonly referred to as a "no defense" holdover proceeding was escalated; $3,000.00 is not customarily charged in Kings County for a holdover proceeding for the recovery of possession from occupants presumably with no lease. A $3,000.00 or above retainer fee would be appropriate for a holdover [*18]proceeding to recover possession of a rent regulated tenancy such a Rent Control, Rent Stabilized or even Federal Section 8 tenant(s), in part, due to the complexity of those laws and regulations. However, the initial retainer amount was not totally unreasonable under the facts. Since the services in this case were clearly fixed and not contingency, those factors are not relevant here.

As previously discussed, the relationship between Plaintiff and Defendant was new. It was based on the referral of the Defendant's future husband.

In addition to all of the above, this court finds it a deviation from traditional and customary legal practices for BEINERT to have his junior associate act as trial counsel in this case. As the presiding judge in many legal fee cases and trial counsel in many more cases of like substance, it is customary in the legal community for the Plaintiff to retain outside counsel in cases such as this one. In many instances, those outside counselors have an ongoing relationship with the law firm; many act, of counsel, on behalf of the firm as trial counsel or specialize in areas unfamiliar to the law firm. The trial transcript in this case speaks volumes of imprudence, inexperience and developing trial skills. It is apparent that no one, not even the managing partner, consulted with outside counsel to discern the requisite elements to prove a legal fee dispute case. Had such action been taken, maybe this action would have been avoided altogether. This court was remorseful that a young associate was obligated to act as trial counsel for his employer in this legal fee case. This court would discourage such uncustomary and irresponsible practice.

Based on the above analysis, the legal fees are reduced as stated in the annexed Schedule "A" and are based on these grounds. Any and all teleconference bills with "ALEX" are disallowed. According to the testimony of the principal of the law office, ALEX was a former client who introduced the parties, however, the Defendant retained the law firm. Since ALEX is not the party that retained the law firm and no evidence was produced that he had a Power of Attorney to act on behalf of the Defendant or any testimony that the Defendant authorized him to act on her behalf, all bills to the Defendant which state "teleconference with Alex" or the like are denied.

In addition, any and all bills that lacked specificity and were too generalized to disclose the nature and scope of the legal services rendered, are likewise disallowed. The bills, as described in Schedule "A" that are disallowed is replicated verbatim from the BEINERT legal fee bills. BEINERT also did not annexed to the bills or present to the court for review, any schedule of the names of the different employees that worked on the case. At the very least the Defendant should have known the name(s) and rank of the individual that billed for services.

After a careful review and complete analysis of the trial transcript and documentary evidence admitted at trial, the Plaintiff law firm failed to substantiate entitlement to the legal fees billed the Defendant.

In summation, BEINERT argues entitlement to the award based on breach of contract and an account stated. The evidence does not support either claim. As to the claim of an account stated, the Plaintiff's reduction of the legal fees after complaints by the Defendant belie this theory of recovery. After appearing in court and hearing the admonishment of the Judge Koblitz and her previous admonishment to BEINERT'S associate that the New Jersey Court did not have jurisdiction over the subject condominium (Plaintiff's Exhibit "10"), the Defendant strenuously objected to the legal fee bills. Although she did not dispute the bills until after November 4, 2004, she had a [*19]legitimate basis to object. Once she objected to the bills, the burden shifted to the Plaintiff to prove the reasonableness of all the bills. This litigation and the New Jersey action constitutes the basis for this judicial scrutiny.

Contrary to the Plaintiff's contentions, the Plaintiff is not entitled to an additional sum of $22,815.32, that is, interest from the date of breach based on the above analysis.

In addition, contrary to the Plaintiff's contentions, the Plaintiff is not entitled to damages in the sum of $50,444.00 since the record does not support such a claim. As shown in Schedule "A" , the Plaintiff has been more than compensated for the legal services rendered in this case and the claim for $2,013.30 in expenses is moot.

Lastly, the Plaintiff's claim for legal fees in the sum of $90,057.62 is denied without merit. Even though the second retainer contained the late payment penalty provision described above, not a single legal fee bill contained any late payment fee and accordingly, the failure of the Plaintiff to enforce its own contract constitutes a knowing and voluntary waiver of those claims. As to the breach of contract claim, the ruling of this court effectively finds this claim also without merit.

In sum, the bills were overly broad, padded, excessive and unreasonable, and were unsupported by any contemporaneous time sheets or supporting records; not even records from WestLaw and/Lexis which require no time keeping efforts whatsoever. Accordingly, the total sum billed for legal fees of $26,216.00 minus the Lodestar reduction of $14,134.50 equals the total allowable legal fee of $12,081.50.

Plaintiff's Exhibits "3A" and Exhibit "3B" in evidence proves that the Defendant paid the sum of $3,000.00 as required by the first retainer agreement (Plaintiff's Exhibit "1") and made additional payments in the sum of $1,000.00 (Plaintiff's Exhibit "6"-check dated October 8, 2004) and the sum of $1,500.00 (Plaintiff's Exhibit "8" -check dated November 5, 2004) for a grand total of $5,500.00. Although no other proof was submitted by the Defendant to substantiate the payment of the sum of $10,500.00, the fact that the Plaintiff law firm stated in Plaintiff's Exhibit "4" that only $15,211.00, the court shall presume that this sum was paid by the Defendant. Although legal fee bills and their , and the Defendant's payments are unclear, plain arithmetic and the credible testimony of the Defendant prove that she paid a total sum of $10,500.00 to the Plaintiff law firm.

The total of $12,081.50 minus $10,500.00 minus $3500.00 equals -$1,918.50. The Plaintiff is not entitled to any legal fees. In fact, the Plaintiff is required to refund the Defendant the sum of $1,918.50.

Turning to the Defendant's claims and defenses, the evidence presented discloses excessive billing, overcharge and improper billing practices by this law firm. However, notwithstanding the 23 affirmative defenses and what appears to be 5 counterclaims, the Defendant only proved the 21st defense to the extent that the legal fees as described above have been paid in full. In this case, no one could credibly argue that a reasonable paying client would be willing to pay in excess of $90,000.00 for a result valued at $3,000.00 or less. The court is not bound by the number of hours worked but may consider the amount of time that was reasonably necessary in light of the services required and the results obtained.

Although the LITINSKAYA contended that she paid in excess of $25,000.00 in legal fees to resolve this underlying legal issue with the occupants of her apartment, no evidence was admitted [*20]to substantiate this claim. The records of the Plaintiff law firm clearly demonstrate that she tendered $10,500.00 to BEINERT and the court deems credible her claims that she paid $3500.00 to Attorney Garfinkle for the services that should have been rendered by BEINERT..

There was no evidence to support the Defendant's claim of fraud or any malicious or criminal wrongdoing by the Plaintiff law firm. Moreover, the record does not support a finding of legal malpractice per se. The court has reviewed the other counterclaims or what has been referred to as the first, second, third and fourth count and finds that the Defendant failed to prove the elements of those claims and accordingly, the claims are dismissed without merit.

Based on all of the above facts and evidence, this court finds that the Plaintiff law firm has failed to prove that the legal fees rendered herein were reasonable and therefore, the complaint is dismissed with prejudice.

The Defendant is entitled to a refund in the sum of $1,918.50 and the Plaintiff is directed to refund this sum within 30 days from the date of this order. Upon the failure of the Plaintiff to comply with this order, the Defendant may enter judgment for $1,918.50 with interest from May 10, 2004, together with costs and disbursements.

The Defendant shall serve a copy of this Order with notice of entry on the Plaintiff within 30 days of the date of entry of this order by the Clerk of the court, and shall file proof of service thereof with the Clerk of this Court.

In order to retrieve any and all of the exhibits that were admitted into evidence in the above captioned case, the attorneys for the respective parties must appear at the 7th floor security desk and after the proper notice to the Chambers of the undersigned, all evidence on the execution of the form provided for that purpose acknowledging receipt thereof.

This constitutes the Decision and Order of this court.



March 31, 2014

_________________________________________________________

DateHon. Harriet L. Thompson

Judge of the Civil Court