Bell v. White

• Decision Date: 03 November 2016
• Parties: John L. BELL, Individually and as Shareholder of Norpco Restaurant, Inc. and Butcher Block of Albany, Inc., Apellant, v. David R. WHITE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1235
41 N.Y.S.3d 307
2016 N.Y. Slip Op. 07248

John L. BELL, Individually and as Shareholder of Norpco Restaurant, Inc. and Butcher Block of Albany, Inc., Apellant,
v.
David R. WHITE et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 3, 2016.

41 N.Y.S.3d 308

Viscardi Howe & Rudgers LLP, Ticonderoga (Michael J. Hutter of Powers & Santola, LLP, Albany, of counsel), for appellant.

Fenney, Centi & Mackey, Albany (Daniel J. Centi of counsel), for respondents.

Before: PETERS, P.J., McCARTHY, GARRY, ROSE and MULVEY, JJ.

PETERS, P.J.

144 A.D.3d 1235

Appeals (1) from an amended order of the Supreme Court (Tomlinson, J.), entered February 12, 2015 in Albany County, which awarded counsel fees to defendant, and (2) from the judgment entered thereon.

The facts of this protracted litigation have been fully articulated in three previous decisions of this Court (112 A.D.3d 1104, 977 N.Y.S.2d 444 [2013], lv. dismissed 23 N.Y.3d 984, 990 N.Y.S.2d 462, 13 N.E.3d 1048 [2014], 77 A.D.3d 1241, 909 N.Y.S.2d 798 [2010], lv. dismissed 16 N.Y.3d 888, 924 N.Y.S.2d 317, 948 N.E.2d 923 [2011], 55 A.D.3d 1211, 867 N.Y.S.2d 729 [2008] ) and will not be repeated here at length. Over a decade ago, the parties entered into a stipulation of settlement that required defendant David R. White to purchase plaintiff's shares of defendant Norpco Restaurant, Inc. Plaintiff thereafter unsuccessfully attempted, on more than one occasion, to set aside the stipulation and Supreme Court granted defendants' motion to enforce it. When plaintiff's noncompliance with the stipulation persisted, he was twice found in contempt and ordered to pay counsel fees to defendants. Upon appeal, we upheld both the enforcement and contempt orders (55 A.D.3d at 1214–1215, 867 N.Y.S.2d 729 ). Thereafter, Supreme Court entered an order awarding defendants counsel fees for legal services performed between June 2007 and July 2009. This Court affirmed the scope of the fee award but, concluding that plaintiff was denied the opportunity to request a hearing on the reasonableness of the underlying fees, we remitted the matter for such a hearing (77 A.D.3d at 1245, 909 N.Y.S.2d 798 ). Following a hearing in October 2011, Supreme Court awarded counsel fees in the amount of $80,896.79. We affirmed on appeal (112 A.D.3d at 1105, 977 N.Y.S.2d 444 ).

Defendants thereafter moved for an award of additional counsel fees for services rendered since the prior award, including, among other things, fees incurred in connection with the October 2011 hearing and in defending against plaintiff's various

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