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Saccetti v. Rosen

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Saccetti v. Rosen

Postby lappert » Wed Mar 06, 2002 8:15 am


New York Law Journal
March 6, 2002

Housing Part h
Judge Elsner

The Petitioners herein move for attorneys fees incurred as the result of successfully opposing an appeal by Respondent of this Court's order dated October 13, 2000. The Order issued after a hearing, granted Petitioners' motion for leave to execute on a warrant issued pursuant to a stipulation in a holdover proceeding. Respondent opposes said motion.

Procedural History:

On March 27, 2000, the parties to the proceeding entered into a stipulation of settlement which resolved claims of attorneys fees through that date. The stipulation awarded Petitioners a final judgment of possession and warrant of eviction which was stayed through March 31, 2001, provided Respondent did not engage in conduct which adversely effected the other tenants in the building. Upon compliance with the terms of the agreement, the proceeding would be deemed discontinued and the warrant vacated.

The stipulation specifically stated that in the event of a breach, no further cure would be allowed and that Petitioners would be entitled to execute on the warrant of eviction. The stipulation was silent as to attorneys fees incurred in connection with a successful or unsuccessful claim of breach of the agreement.

A short time later, Petitioners moved to execute on the judgment and warrant based upon an alleged breach of the agreement. A hearing was conducted over a period of several days. The Court found that Petitioners established a documented case of nuisance and granted Petitioners' motion for leave to execute on the judgment and warrant.

Respondent appealed this Court's order to the Appellate Term, First Department. By order and Decision dated September 25, 2001, the Appellate Term affirmed the trial courts order, allowing Petitioners to execute on the judgment and warrant.

Legal Analysis:

The law is clear that where a stipulation of settlement is silent as to fees and settles a proceeding in its entirety, a party may not seek fees incurred for legal action taken prior to the date of the agreement absent a reservation of rights. This proposition applies even when one party violates the terms of the stipulation at issue. See generally, Lewis v. Garber, NYLJ 2/19/92, p. 21 col. 2 (App. Term 1st Dep't.); Arieh v. Meckler, NYLJ 6/20/91, p. 25 col. 5 (App. Term 1st Dep't.); Rossmill Associates v. Curtis, NYLJ 2/26/99, p. 26 col. 2 (App. Term 1st Dep't.) Courts have also held that a party may be awarded prevailing party status pursuant to an attorneys fees provision in a lease whether the matter is resolved by trial or by stipulation wherein a party secures the central relief sought. Nestor v. McDowell, 81 NY2d 410, 415-416 (1993).

In this instance, the Court ordered stipulation did not provide that the prevailing party in a hearing arising from an alleged breach of said stipulation, would be awarded attorneys fees. Given that the March 27, 2000 stipulation was the second stipulation of settlement in the proceeding, a breach was a forseeable circumstance and would certainly have been contemplated by the parties, who were well represented by counsel when the agreement was executed. As such, Petitioner is prevented from obtaining attorneys fees for those legal costs incurred for the hearing which resulted from a breach of the March 27, 2000 stipulation.

What could not have been anticipated at the time the stipulation was executed, is that Respondent would appeal an adverse decision by the trial court. The terms of the stipulation should not be applied forward to cover unforseeable circumstances, especially when the costs incurred were solely due to Respondent's decision to seek relief from a higher court. The fees incurred as a result of this strategy should be treated differently that those incurred for the hearing. Furthermore, the fees incurred by Petitioners during the course of the appeal did not result from the Respondent's breach of the stipulation, but rather Respondent's effort to maintain her tenancy in the face of an adverse decision by the trial court.


Based upon the applicable provisions of the lease together with Real Property Law Section 234, Petitioners are awarded costs and legal fees incurred in connection with opposing Respondent's appeal of the Order and Decision of this Court dated October 13, 2000. The matter is set down for a hearing on March 5, 2002, to determine the reasonable value of same.

This constitutes the order and decision of this Court.
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