Bd. of Managers of Fishkill Woods Condo. v. Gottlieb
| Decision Date | 24 June 2020 |
| Docket Number | Index No. 50287/16,2018-07359 |
| Citation | 126 N.Y.S.3d 698,184 A.D.3d 792 |
| Parties | BOARD OF MANAGERS OF FISHKILL WOODS CONDOMINIUM, etc., Respondent, v. Kenneth GOTTLIEB, et al., Appellants. (Matter No. 1) Kenneth Gottlieb, et al., Appellants, v. Fishkill Woods Condominium, et al., Respondents. (Matter No. 2) |
| Court | New York Supreme Court — Appellate Division |
Pascazi Law Offices PLLC, Fishkill, NY (Michael S. Pascazi of counsel), for appellants.
Steven A. Campanaro, White Plains, NY, for respondents.
MARK C. DILLON, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In a consolidated action, inter alia, for declaratory and injunctive relief, the defendants in Matter No. 1 and the plaintiffs in Matter No. 2 appeal from a money judgment of the Supreme Court, Dutchess County (James V. Brands, J.), dated May 8, 2018. The money judgment, upon an order of the same court dated July 19, 2017, in effect, inter alia, granting that branch of the motion of the plaintiff in Matter No. 1 and the defendants in Matter No. 2 which was for a protective order with respect to discovery demands for a letter of engagement or retainer agreement with their counsel and denying that branch of the cross motion of the defendants in Matter No. 1 and the plaintiffs in Matter No. 2 pursuant to CPLR 3124 which was to compel the plaintiff in Matter No. 1 and the defendants in Matter No. 2 to produce a letter of engagement or retainer agreement with their counsel, and upon a decision of the same court dated April 18, 2018, made after a hearing, is in favor of the Board of Managers of Fishkill Woods Condominium, the plaintiff in Matter No. 1 and a defendant in Matter No. 2, and Fishkill Woods Condominium, a defendant in Matter No. 2, and against the defendants in Matter No. 1 and the plaintiffs in Matter No. 2 in the total sum of $66,029.75 as an award of attorneys' fees and disbursements.
ORDERED that the money judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Dutchess County, for a new determination of the amount of reasonable attorneys' fees paid or incurred by the Board of Managers of Fishkill Woods Condominium and Fishkill Woods Condominium only in connection with the causes of action and counterclaims for recovery of unpaid common charges.
The background facts relating to this consolidated action are set forth in this Court's decision and order on a related appeal (see Board of Mgrs. of Fishkill Woods Condominium v. Gottlieb, 84 A.D.3d 785, 126 N.Y.S.3d 749 [Appellate Division Docket No. 2017–03175 ; decided herewith] ).
Prior to a hearing on the amount of reasonable attorneys' fees to be awarded the Board of Managers of Fishkill Woods Condominium (hereinafter the BOM), Fishkill Woods Condominium (hereinafter the Condominium), and Peter Galotti (hereinafter collectively the BOM parties), Kenneth Gottlieb and Terry Gottlieb (hereinafter together the appellants) served discovery demands on the BOM parties demanding, inter alia, a letter of engagement or retainer agreement between the BOM parties and their attorney and their attorney's time and billing logs. In May 2017, the BOM parties moved for a protective order with respect to certain discovery demands, including the demands for a letter of engagement or retainer agreement. In support of the motion, the BOM parties submitted, inter alia, an affidavit of Galotti, the president of the BOM, in which he averred that the BOM retained attorney Steven A. Campanaro to represent the BOM parties in this consolidated action for a billable rate of $290 per hour, which Galotti averred was reasonable and approximately 20% less than what other attorneys of similar experience and skill charge. The appellants opposed the BOM parties' motion and cross-moved pursuant to CPLR 3124, inter alia, to compel the BOM parties to produce a letter of engagement or retainer agreement.
In an order dated July 19, 2017, the Supreme Court, in effect, inter alia, granted that branch of the BOM parties' motion which was for a protective order with respect to the discovery demands for a letter of engagement or retainer agreement, and denied that branch of the appellants' cross motion which was to compel production of a letter of engagement or retainer agreement. The court directed the BOM parties to disclose all time sheets and billing logs with the dates and description of services rendered, and determined that the other disclosure demands were overly broad, duplicative, immaterial, or otherwise objectionable.
On November 1, 2017, the Supreme Court held a hearing on the reasonable attorneys' fees to be awarded to the BOM parties, during which the BOM parties' attorney testified and his billing and time logs were admitted into evidence. Thereafter, the court issued a money judgment dated May 8, 2018, in favor of the BOM and the Condominium and against the appellants in the total sum of $66,029.75 as an award of attorneys' fees and disbursements.
Contrary to the BOM parties' contentions, the appeal from the money judgment brings up for review the order dated July 19, 2017. However, the Supreme Court did not improvidently exercise its discretion by, in effect, granting that branch of the BOM parties' motion which was for a protective order with respect to the demands for a letter of engagement or retainer agreement and denying that branch of the appellants' cross motion which was to compel the production of a letter of engagement or retainer agreement.
CPLR 3101(a) provides, in pertinent part, that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." ( Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 ; see Forman v. Henkin, 30 N.Y.3d 656, 661, 70 N.Y.S.3d 157, 93 N.E.3d 882 ; Asphalt Maintenance Servs....
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...to establish that those records were material and necessary to the defense of this action (see Board of Mgrs. of Fishkill Woods Condominium v. Gottlieb, 184 A.D.3d 792, 794, 126 N.Y.S.3d 698 ; Adams v. Imperial, 115 A.D.3d 893, 982 N.Y.S.2d 396 ).The Supreme Court also properly denied that ......
- Bd. of Managers of Fishkill Woods Condo. v. Gottlieb