Alfonso v. Rosso

• Decision Date: 10 December 1987
• Citation: 522 N.Y.S.2d 813,137 Misc.2d 915
• Parties: Jerry ALFONSO, et al., Petitioners, v. Isaac ROSSO, et al., Respondents. J. POXT, et al., Petitioners, v. GSL ENTERPRISES, INC., Sol Goldman, and Joe Baez, and New York City Department of Housing Preservation and Development, Respondents.
• Court: New York City Court

Page 813

522 N.Y.S.2d 813

137 Misc.2d 915

Jerry ALFONSO, et al., Petitioners, v. Isaac ROSSO, et al., Respondents.

J. POXT, et al., Petitioners, v. GSL ENTERPRISES, INC., Sol Goldman, and Joe Baez, and New

York City Department of Housing Preservation and

Development, Respondents.

Civil Court of the City of New York,

New York County, Part 18L.

Dec. 10, 1987.

Anne R. Teicher and Susan M. Cohen, of counsel; Wayne G. Hawley, MFY Legal Service, Inc., New York City, for petitioners Alfonso et al.

Joel M. Bernstein and M. Bruce Solomon, of counsel; Solomon & Bernstein, New York City, for respondents, Rosso and Cohen.

Joel M. Bernstein, Solomon & Bernstein, New York City, for petitioners Poxt et al.

Jill A. Kanter, Glen Kantor, New York City, for respondent GSL, et al.

LEWIS R. FRIEDMAN, Judge.

Judiciary Law 773 provides that a penalty for civil contempt is the imposition of a fine. These two cases present previously unresolved questions concerning the amount of that fine.

In both cases, on application by the petitioning tenants, the court had entered orders requiring the respondent owners to remedy conditions at their buildings. In both cases the owners have been found in civil contempt of the orders--in Alfonso respondents admitted the contempt, while in Poxt the finding was after trial.

By statute the fine may equal the actual loss to the aggrieved party; all agree that petitioners have not established any actual damages resulting from the contempts. The fine is, therefore, limited. Judiciary Law Section 773 provides, in pertinent part:

* * * Where it is not shown that such an actual loss or injury has been produced, a fine may be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto * * *

The language of Section 773 originated in 1829 (2 N.Y.Rev.Stat. [1829 ed.], at 538, ch. viii, tit. xiii, 22) and was continued, essentially unchanged, as Section 2284 of the Code of Civil Procedure (Code Civ.Pro., ch. xvii, tit. 3, 2284, L.1880, ch. 178; see L.1876, ch. 448, 14). The early cases appear to have held that "costs and expenses" did not include attorney's fees. (Sudlow v. Knox, 7 Abb.Prac. [NS] 411, 419 [Ct. of Appeals 1869]; Power v. Village of Athens, 19 Hun. 165 [3rd Dept.1879]; cf. Downing v. Marshall, 37 N.Y. 380 [1867].) However, late in the 19th century the Court of Appeals concluded that an award of attorney's fees as part of the fine was permissible (People ex rel. Garbutt v. Rochester & State Line RR Co., 76 N.Y. 294, 301 [1879] ). That interpretation has been continuously followed. (e.g., Hardwood Dimension & Mouldings Inc. v. Consolidated Edison Co., 77 A.D.2d 644, 430 N.Y.S.2d 380; Ellenberg v. Brach, 88 A.D.2d 899, 902, 450 N.Y.S.2d 589; Matter of Rothko, 84 Misc.2d 830, 886, 379 N.Y.S.2d 923, mod. on other grounds, 56 A.D.2d 499, 392 N.Y.S.2d 870, affd. 43 N.Y.2d 305, 401 N.Y.S.2d 449, 372 N.E.2d 291; Gregori v. Ace 318 Corp., 134 Misc.2d 871, 874-875, 513 N.Y.S.2d 620.)

The cases, however, have not provided guidance on several of the issues presented here: may a fine include attorney's fees even though petitioners' attorneys were provided by a non-profit organization which was not paid by petitioners; are the costs of the fee hearing properly includable; and are additional costs under CPLR 8303 to be awarded.

Fees for attorneys provided by non-profit organizations

The purpose of Section 773 was to insure that the injured party "should at least be made whole. He ought not to be punished for misconduct of the guilty party, as he certainly would be if not allowed, as necessary expenses, the reasonable charges of his counsel." (Van Valkenburgh v. Doolittle, 4 Abbot's N.C. 72, 75-76 [S.Ct.1877].) The civil contempt statute has often been described as "remedial" and "compensatory", not punitive (Socialistic Co-operative Pub. Assn. v. Kuhn, 164 N.Y. 473, 475, 58 N.E. 649 [1900]; State of New York v. Unique Ideas, 44 N.Y.2d 345, 350, 405 N.Y.S.2d 656, 376 N.E.2d 1301 [1978]; S.I. Realty Holding Corp. v. Harris, N.Y.L.J., Feb. 14, 1986, p. 13, col. 1; Department of Housing Pres. & Dev. v. Swett, N.Y.L.J., June 11, 1984, p. 7, col. 3). Counsel for petitioners are attorneys employed by MFY Legal Services, Inc.; no fee was charged to petitioners. Respondents in Alfonso argue that they should not be required to pay a fine which includes attorney's fees to petitioners who have been "made whole" without such an award.

There is little doubt that the petitioners were harmed by by respondents' contempts; the repair to the Single Room Occupancy hotel in which they live has unreasonably been delayed. There is also little question that petitioner's counsel has through its funding provided valuable services to petitioners to insure that respondents complied with the consent order. Even though the petitioners have not paid counsel, counsel has been paid for their services. This court finds that the remedial purposes of Judiciary Law 773 are served by the imposition of a compensatory fine equal to the fair and reasonable value of the attorney's fees. As Justice Brennan, concurring in Hensley v. Eckerhart, 461 U.S. 424, 446 n. 6, 103 S.Ct. 1933, 1946 n. 6, 76 L.Ed.2d 40, noted: "such [legal services] attorneys should be paid as if they were in private practice, in order to avoid windfalls to defendants and to free public resources for other types of law enforcement." (See Matter of Greenpoint Hosp. Community Bd. v. New York City Health & Hosp. Corp., 114 A.D.2d 1028, 1032, 495 N.Y.S.2d 467.)

In an analogous area, the New York courts have held that attorney's fees should be awarded to prevailing parties in federal Civil Rights Act cases (42 U.S.C. § 1988) even where the services have been provided by non-profit legal services corporations. (Matter of Johnson v. Blum, 58 N.Y.2d 454, 459, 461 N.Y.S.2d 782, 448 N.E.2d 449; Matter of Rahmey v. Blum, 95 A.D.2d 294, 302, 466 N.Y.S.2d 350.) That is consistent with the federal cases. (e.g., Hensley v. Eckerhart, supra; New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 70-1, 100 S.Ct. 2024, 2034-35, 64 L.Ed.2d 723; Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 487 n. 31, 102 S.Ct. 3187, 3204, 73 L.Ed.2d 896; Copeland v. Marshall, D.C.Cir., 641 F.2d 880, 889.) While the Appellate Term, Second Department, has held in one circumstance that where a legal services organization provides counsel for a tenant, fees are not "incurred" within the meaning of RPL 234 (Maplewood Mgmt. v. Best, 133 Misc.2d 769, 509 N.Y.S.2d 449) that decision turns on the language of RPL 234; it is not a case of general applicability. Moreover, it is inconsistent with the Appellate Division, Second Department, cases of Matter of Rahmey v. Blum, supra, and Matter of Greenpoint Hosp. Community Bd. v. New York City Health & Hosp. Corp., supra, where fees for services provided by non-profit community groups were allowed, and need not be followed.

In Alfonso there was an evidentiary hearing on the question of attorney's fees. The court finds that petitioners' counsel functioned in an efficient manner to achieve favorable results for their clients. Respondents argue that the time spent was excessive since petitioners did not "prevail" on their key point of law, the award of a $250 compensatory fine to each petitioner. Respondents assert that their concession of liability and offer to pay a single $250 civil contempt fine made any legal work on the amount of the fine unnecessary. Respondents' argument relies far too heavily on the language of the federal Civil Rights Attorney's Fees Awards Act (42 U.S.C. § 1988) and the cases interpreting it. That statute permits "the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Cases interpreting the federal statute have focused on the final result. "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. * * * That the plaintiff is a 'prevailing party' therefore may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." (Hensley v. Eckerhart, supra, 461 U.S. at 435-436, 103 S.Ct. at 1940-1941.)

The federal concept of measuring a fee by the result is not appropriate in civil contempt cases. The federal statute relates to the intent of the Civil Rights Act to encourage "private attorneys general" to enforce the public's interest in providing civil rights to all. (See Hensley v. Eckerhart, supra, 461 U.S. at 443-448, 103 S.Ct. at 1944-1947, Brennan J., concurring.) The New York contempt statute, on the other hand, focuses on compensation for the aggrieved party, and not on general public rights. In a civil contempt proceeding the respondent should bear all the expenses reasonably incurred by the successful party both in establishing its case in chief and in determining appropriate sanctions, whether fine or imprisonment. In this contempt case the issue of the amount of a fine was, despite respondents' current arguments, not free from doubt (see the decision holding respondents in civil contempt and Gregori v. Ace 318 Corp., supra, decided contemporaneously therewith); it was not unreasonable for petitioners to devote substantial time to research that issue.

The court will not base the fine on any fees related to the resolution of the criminal contempt proceeding or of issues concerning conditions in the building not involved in the contempt proceeding. The time devoted to an effort to resolve the contempt case by settlement is, of course, compensable since a resolution of the issues by settlement can be considered "prevailing" even under the federal statute. (Maher v. Gagne, 448 U.S. 122, 129-130, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653; but see Canick v. Canick, 122 A.D.2d 767, 505 N.Y.S.2d 652.)

Based on the testimony of the witnesses the court finds that the hourly rates sought, $175 per hour for Ms. Teicher, an agency...