[*1]
Sondhi v 69 W. 9 Owners Corp.
2015 NY Slip Op 50028(U) [46 Misc 3d 1209(A)]
Decided on January 15, 2015
Civil Court Of The City Of New York, New York County
Kraus, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 15, 2015
Civil Court of the City of New York, New York County


Irene Sondhi, Petitioner

against

69 West 9 Owners Corp., GEORGANNE LUND, EDISH SCHICKEDANZ, GUMLEY HAFT a/k/a GUMLEY HAFT KLEIER, INC., NANCY GARTON, LYNN STUMER, JOSEPH ISLER, ANTHONY ABBATIELLO and DAVID BIRDSELL, Respondents. NYC DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (HPD).




HPNo. 6209/09



HIMMELSTEIN, MCCONNELL, GRIBBEN,



DONOGHUE & JOSEPH



By: Elizabeth Donoghue, Esq.



Attorneys for Petitioner



15 Maiden Lane, Suite 1700



New York, NY 10038



212.349.3000



BRAVERMAN GREENSPUN, P.C



By: Jon Kolbrener, Esq.



Attorneys for Respondents



110 East 42nd Street - 17th Floor



New York, NY 10017



212.682.2900


Sabrina B. Kraus, J.

BACKGROUND



This summary HP proceeding was commenced by IRENE SONDHI (Petitioner) the tenant of record and shareholder of Apartment PHE at 69 West 9th Street, New York, NY, 10011 (Subject Premises) against 69 WEST 9 OWNERS CORP. (Respondent), the Proprietary Lessor, and GEORGANNE LUND, EDISH SCHICKEDANZ, GUMLEY HAFT (a/k/a GUMLEY HAFT KLEIER, INC.), NANCY GARTON, LYNN STUMER, JOSEPH ISLER, ANTHONY ABBATIELLO, DAVID BIRDSELL and naming DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (DHPD) as a statutory party. Petitioner sought repairs arising from a leak from a burst pipe that took place in December 2006.

PROCEDURAL HISTORY



Petitioner commenced this proceeding by Order to Show Cause and verified Petition initially returnable July 31, 2009. The pleading sought an order:



directing Respondent to retain an expert to determine the source of the leak and to make specific recommendations to ensure that the leak had stopped; and



directing that the source of the leak be identified and eliminated before remediation starts; placing violations for conditions listed in the Subject Premises; requiring that the Respondent correct the violation in a specific manner; providing for penalties if violations were not timely corrected; and



requiring Respondent to remove and discard at its own expense Petitioner's personal belongings prior to commencing the work;



and requiring Respondent " .. to remove all floors, ceilings and walls including sheet rock or insulation and to install .... new walls, ceilings and floors after the remediation work is completed ...".



Respondent appeared by counsel on the initial return date, and the parties entered into a stipulation adjourning the proceeding to September 8, 2009, and providing Respondent would file a written answer by September 1, 2009.



Respondent filed an answer dated November 25, 2009, which asserted inter alia that prior to commencement of the proceeding Respondent sought to correct any mold condition in the Subject Premises, but could not obtain Petitioner's consent to gain access.



On September 8, 2009, the parties entered into a stipulation adjourning the proceeding to October 6, 2009, and extending Respondent's time to answer to September 24, 2009. On October 6, 2009, the court adjourned the proceeding to December 8, 2009 for trial.



On December 8, 2009, the proceeding was adjourned on consent to December 15, 2009, for submission of a stipulation of settlement.



On December 15, 2009, the parties proved unable to reach terms on a stipulation, with one main point of contention being Petitioner's insistence that the walls be taken down in the Subject Premises (Transcript for court appearance[FN1] ). The court adjourned the proceeding to January 7, 2010, for a further pre-trial conference and February 16, 2010, for trial.



On February 16, 2010, the proceeding was dismissed by the court (Cohen,J) based on the failure of the parties to appear.



On March 9, 2010, Petitioner and her attorney executed and filed a consent to change attorney indicating Petitioner would proceed pro se.



On April 9, 2010, Petitioner again appeared by counsel, and the parties entered into a stipulation restoring the proceeding to the calendar for trial on May 10, 2010.



On May 10, 2010, the trial commenced. At the conclusion of the proceedings on said date, the court (Kaplan, J) adjourned the proceeding to June 2, 2010 for continued trial, and issued an order providing in pertinent part:



Respondent concedes the existence of mold throughout petitioner's apartment. Based on the above, it is apparent that a hazardous violation exists. The court sees no benefit to allow the condition to continue to exist while the parties continue to litigate tangential issues. Accordingly, Petitioner is directed to provide access for respondent to begin remediation of the mold conditions [see New York City Civil Court Act § 110 ( c)]. Access to be arranged between the parties prior to return date. Parties reserve all claims & defenses.



The file indicates that on May 28, 2010, the June 2 trial date was changed, and the proceeding was adjourned to June 9, 2010, when the court conducted a status conference with the parties on the record. The court stated that it was undisputed that the work ordered by the court on May 10, 2010, had been done. The court stated that it was up to Petitioner to determine how she wished to proceed. At the conclusion of the conference, no court date was set, and the parties were to contact the court with any requested adjourn date.



As of September 21, 2010, the parties had not contacted the court regarding any further date, and the court (Kaplan, J) marked the file that "Parties have not contacted Ct, case is deemed marked off calendar as of June 9, 2010."



Nothing further occurred until April 1, 2011, when Respondent moved for an order dismissing the proceeding as abandoned. That motion was marked withdrawn by the court, pursuant to a letter from movant dated April 18, 2011.



Nothing further happened in this proceeding for over one year. Then on July 19, 2012, Respondent moved by order to show cause for an order to restore the proceeding to the calendar and complete the trial before Judge Kaplan, for a determination that Judge Kaplan's May 2010 order had been complied with, and for an order dismissing the proceeding and awarding Respondent attorneys' fees.



The court (Wendt, J) declined to sign the Order to Show Cause holding "(t)his matter was marked off calendar June 9, 2010. The last activity in Court occurred April 29, 2011, when a motion to dismiss was withdrawn. This matter has thus been off calendar for far more than one year, and is deemed abandoned pursuant to CPLR 3404."



On September 10, 2012, Petitioner moved to vacate the dismissal and restore the proceeding to the calendar for trial. Petitioner alleged that a mold condition continued to exist in the Subject Premises, and that there was a reasonable excuse for the delay.



The motion was adjourned for the next seven months, pursuant to the parties' stipulations to October 11, 2012, November 8, 2012, November 27, 2012, January 10, 2013, February 5, 2013, March 12, 2013, and April 1,2013.



On April 2013, the file marking indicates that the parties reported to the court that the motion had been resolved by stipulation, which would be subsequently filed with the court. There is no such stipulation in the court file. The motion sheet indicates that the motion was granted to the extent of the parties' stipulation, but is not signed but any Judge and has no stipulation attached.



However, both parties in the motion papers currently pending before the court, reference [*2]a stipulation executed by the parties and dated May 2, 2013. The stipulation does not address the relief requested in the motion in anyway. The stipulation was not so-ordered by the court. The stipulation neither vacates Judge Wendt's dismissal of the proceeding, nor restores the proceeding to the calendar for continued trial. Instead the stipulation provided that: both parties reserved claims for attorneys' fees; that Respondent would undertake additional work at the Subject Premises; that Petitioner's expert would conduct post remediation testing within 14 days of the completion of this work; and that Respondent would the restore the Subject Premises to its original condition prior to the 2006 leak.



The stipulation, pursuant to its own explicit terms may not be used by either party to claim an entitlement to attorneys' fees or prevailing party status. Paragraph two of the stipulation provides:

This settlement agreement has been entered into by the panties in order to avoid the cost of further litigation, and may not be utilized or construed by any party as evidence of the strength or weakness of the claims or defenses of a party to this action for any purpose, including but not limited to the adjudication of a request for legal fees.



Nothing further took place in court until September 2014, when Petitioner moved for an order restoring the case to the calendar, and for an order holding that Petitioner is the prevailing party in the underlying litigation and entitled to attorneys' fees.



Respondent cross-moved for fees on October 14, 2014. The papers were fully submitted and the court heard argument on November 10, 2014 and reserved decision. The motion and cross-motion are consolidated herein for determination.DISCUSSION



When a proprietary lease permits the Coop Board to recoup attorneys' fees in the event of litigation with a shareholder, and its is uncontested that the proprietary lease herein has such a provision, RPL § 234 affords the shareholder a reciprocal right to attorneys' fees if the shareholder was forced to initiate an HP proceeding to compel compliance and prevails on the central claim ( HP Proceedings: A Primer, Gerald Lebovits, p. 118, 2007; see also Rosario v 288 St. Nicholas Realty Inc 177 Misc 2d 78).



Also relevant to a determination of prevailing party status, are the scope of the litigation and what was achieved within that scope (Solow v. Wellner, 205 AD2d 339, 340, affd 86 NY2d 582).



The court finds that neither side can be deemed the prevailing party in this proceeding. It was never disputed by Respondent that there was mold in the Subject Premises, which Respondent acknowledged responsibility for and was ready, willing and able to address. The real dispute between the parties centered on Petitioner's desire to direct Respondent in how to correct the conditions and issues of access. This issue was never resolved in Petitioner's favor.



Petitioner waited for years after the alleged leak to commence the proceeding.



Almost one year after the proceeding was commenced, Petitioner completed only one day of trial, and then took no further action to prosecute this proceeding for years. The court never resolved any of the disputed issues between the parties. The trial was never completed, and in fact there is no order in the record vacating Judge Wendt's dismissal of the proceeding for failure to prosecute.



Courts have discretion to deny fees based on equitable considerations and fairness (Kralik v. 239 East 79th Street Owners Corp., 93 AD3d 569).



Abrams v. 4-6-8, LLC, Transrealty Inc. [38 Misc 3d 127(A)], was an HP proceeding where the Appellate Term held neither party was entitled to attorneys' fees. That proceeding was dismissed by the court after trial. Notwithstanding said dismissal, The Appellate Term reversed the trial court's award of attorneys' fees to the landlord, because it found that the tenant did have to resort to legal proceedings to compel the landlord to cure the violation, and the landlord did do "significant work" to remedy the condition complained of after the commencement of the proceeding. Similarly, the Appellate Term held that the tenant was not entitled to fees, because the tenant significantly prolonged the proceeding and that it would be unfair and inequitable to award either party attorneys' fees.



The Appellate Term's decision was recently affirmed by the Appellate Division (2014 NY Slip Op 08486) wherein the Appellate Division held that although the landlord was the prevailing party, given that the proceeding had been dismissed after trial, the landlord's claim for fees was properly denied, as both parties had unnecessarily prolonged the proceeding.



In this proceeding, there was no prevailing party. Petitioner certainly did not achieve much of the relief sought in her petition, and it was never found by the court that Petitioner had to resort to legal proceedings to have the condition corrected. It is clear that this proceeding was unnecessarily protracted by both sides and the court finds neither side is entitled to fees [see also East Midtown Plaza Housing Co. v. Cannings, 14 Misc 3d 127(A)].



The Court's May 2010 order directed Petitioner to give access and for Respondents to remediate. It never directed Respondents to comply with a specific protocol or procedures as Petitioner had been seeking when she commenced the proceeding.



Based on the foregoing, the motion and cross-motion are denied.

This constitutes the decision and order of this Court.



Dated: New York, New York

January 15, 2015



____________________



Sabrina B. Kraus, JHC

Footnotes


Footnote 1:Transcripts of the trial and various other court appearances were in the court file and were considered by the court in determining the underlying motions.