Hood v. Koziej

• Court: New York Supreme Court — Appellate Division
• Citation: Hood v. Koziej, 2016 NY Slip Op 4889, 140 A.D.3d 563, 37 N.Y.S.3d 68 (N.Y. App. Div. 2016)
• Decision Date: 21 June 2016
• Parties: Eric HOOD, Plaintiff–Respondent–Appellant, v. Peter KOZIEJ, et al., Defendants–Appellants–Respondents.

140 A.D.3d 563

37 N.Y.S.3d 68

2016 N.Y. Slip Op. 04889

Eric HOOD, Plaintiff–Respondent–Appellant,

v.Peter KOZIEJ, et al., Defendants–Appellants–Respondents.

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

June 21, 2016.

Wuersch & Gering LLP, New York (Craig M. Flanders of counsel), for appellants-respondents.

Charles H. Small, New York, for respondent-appellant.

TOM, J.P., FRIEDMAN, SAXE, KAPNICK, JJ.

Judgment, Supreme Court, New York County (Joan M. Kenney, J.), entered February 26, 2015, awarding plaintiff the total sum of $53,534.98, and bringing up for review an order, same court and Justice, entered July 15, 2014, which, inter alia, denied defendants' motion for summary judgment dismissing the complaint, and granted plaintiff's cross motion for partial summary judgment as to liability, and an order, same court and Justice, entered on or about February 20, 2015, which confirmed the recommendation of the Judicial Hearing Officer, dated December 22, 2014, and awarded plaintiff damages of $6,700.00, plus interest, and attorneys' fees of $44,714.00, denied plaintiff's motion for supplemental attorneys' fees and treble damages, and denied defendants' cross motion to vacate the grant of partial summary judgment to plaintiff, unanimously modified, on the law and the facts, to award plaintiff attorneys' fees and expenses of $32,870.55 for the period subsequent to December 10, 2014, and to grant plaintiff treble damages on the sum of $6,700 only, and otherwise affirmed, without costs. Defendants' appeals from aforementioned orders unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Plaintiff's appeal from the order entered February 20, 2015 deemed an appeal from the judgment.

The court properly concluded that there was personal jurisdiction over defendants based on the process server's affidavits and defendant Robert Koziej's admission that multiple sets of pleadings were affixed to different locations in defendants' building and place of business. Robert Koziej's affidavit was conclusory and insufficient to overcome the presumption raised by the other evidence (see Grinshpun v. Borokhovich, 100 A.D.3d 551, 552, 954 N.Y.S.2d 520 [1st Dept.2012], lv. denied 21 N.Y.3d 857, 2013 WL 2436328 [2013] ).

The court correctly denied defendants' motion to vacate the court's order granting plaintiff partial summary judgment on liability based on defendants' failure to contest the merits of plaintiff's claims, including his request for attorneys' fees. Although not technically a default because defendant appeared in opposition to plaintiff's cross motion, they failed to demonstrate a reasonable excuse or a meritorious defense, and failed to explain why it took more than six months to seek this relief (see Benson Park Assoc., LLC v. Herman, 73 A.D.3d 464, 465, 899 N.Y.S.2d 614 [1st Dept.2010] ).

However, plaintiff is entitled to an award of supplemental attorneys' fees and expenses for the period subsequent to December 10, 2014, pursuant to Real Property Law § 234, in that the proceedings after that date were necessary for plaintiff to obtain complete relief, and, in any event, defendants never contested the amount of the fees and expenses or the reasonableness of counsel's hourly rate. In fact, defendants only argue that the award of attorneys' fees and expenses under Real Property Law § 234 was improper because the lease and lease extension were not signed by them. However, it is not disputed that plaintiff, as the party to be charged, signed the lease and lease extension, and defendants accepted payment from plaintiff and provided him with the keys to the premises. By so doing, defendants ratified the lease and lease extension, and thus cannot avoid their obligations now, including their reciprocal obligation for attorneys' fees under Real Property Law § 234, simply because they never delivered a signed copy of the leases to plaintiff (see One Ten W. Fortieth Assoc. v. Isabel Ardee, Inc., 124 A.D.3d 500, 998 N.Y.S.2d 620 [1st Dept.2015] ).

As to whether plaintiff is entitled to treble damages under Real Property Actions and Proceedings Law § 853, the statute provides:

“If a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer.”

“RPAPL § 853 and its predecessor ... were enacted to discourage undue intimidation and violence in the ejection of persons from real property by providing for treble damages under certain circumstances” (Rudolph de Winter and Larry M. Loeb, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 49 ½, RPAPL 853 ). The statute was amended in 1981 to include the references to “unlawful manner” and “unlawful means” (see Lyke v. Anderson, 147 A.D.2d 18, 24, 541 N.Y.S.2d 817 [2d Dept.1989] ; see also Mannion v. Bayfield Dev. Co., 134 Misc.2d 1060, 514 N.Y.S.2d 186 [Sup.Ct., N.Y. County 1987] ) and was “intended to remedy such actions as ‘removing the tenant's possessions while he or she is out, or by ... changing the door lock—actions beyond the narrow legal definition of force’ ” (Mayes v. UVI Holdings, 280 A.D.2d 153, 160, 723 N.Y.S.2d 151 [1st Dept.2001], quoting 1981 N.Y. Legis Ann at 256).

In Mayes, this Court, without ultimately reaching the issue, acknowledged that “[t]he [1981] amendment to the statute has resulted in some variation in the criteria applied in assessing treble damages against a wrongdoer” (280 A.D.2d at 160, 723 N.Y.S.2d 151 ). Since 1981, courts have framed the issue as whether, under RPAPL 853, an award of treble damages is discretionary or mandatory in cases where the record establishes forcible or unlawful entry into real property. Although this Court has not decided the issue, the Appellate Division, Second Department, and the Supreme Court, New York County, have determined that the legislature intended to leave the question of whether treble damages should be awarded, pursuant to RPAPL 853, to the discretion of the court (Lyke, 147 A.D.2d at 28, 541 N.Y.S.2d 817 ; Mannion, 134 Misc.2d at 1064, 514 N.Y.S.2d 186 ).¹ In fact, plaintiff here does not advocate that he is automatically entitled...