Case Notes in
Attorney Fees
Category
- Access
- Alterations
- Arbitration
- Assessment
- Attorney Fees
- Attorney-Client
- Authority to Sue
- Balcony/Terrace Rights
- Bike Lane
- Books and Records
- Breach of Lease
- Business Judgment Rule
- Bylaws
- Bylaws/House Rules
- Certificate of Occupancy
- Charges/Fees
- Commercial Unit
- Common Element
- Common Elements
- Companion Animal
- Constitutionality
- Construction Defects
- Contracts
- Conversion
- Defamation
- Discovery
- Discrimination
- Due Diligence
- Easement
- Elections
- Estate
- Eviction
- Eviction/Termination
- Fiduciary Duty
- Fines
- Foreclosure
- Fraud
- Governance
- Gym
- House Rules
- Indemnification
- Indemnification/Subrogation
- Injunction
- Insurance
- Labor Law
- Liability of Directors
- Licenses
- Liens
- Maintenance
- Malpractice
- Management
- Mechanic's Lien
- Misrepresentations
- Motion Practice
- Motion Practive
- Notice of Pendency
- Nuisance
- Occupancy Agreement
- Ownership
- Parking
- Partnership
- Personal Injury
- Pets
- Property Damage
- Proprietary Lease
- Reasonableness
- Receivership
- Release
- Repairs
- Representations
- Sales
- Sponsor
- Statute of Limitations
- Stock/Shares
- Stocks/Shares
- Sublets
- Succession Rights
- Tax
- Third-Party Liability
- Transfers
- Trespassing
- Trial Practice
- Violations
- Warranty of Habitability
- Yellowstone Injunction
- Zoning
First published: Feb 2023
Attorney Fees: Who Will Foot The Bill?The specific language relating to attorney’s fees in proprietary leases matters! If the language in the proprietary lease only provided for fees when prosecuting a shareholder default (and not, as here, defending a shareholder claim) or such fees were not explicitly categorized as additional rent, it is very possible this case could have gone the opposite way and the bank would have priority over the cooperative. If your board has not reviewed the attorney fee language in your co-op’s proprietary lease recently, it would be wise to have your attorney do so. You want to make sure it maximizes protection for the co-op.
Read full articleFirst published: Jul 2022
Bd. Of Mgrs. Of 207-209 E. 120th St. Condo. V. DouganTAKEAWAY This case is a stark reminder to condominiums that many of their bylaws do not provide the right for the condominium to recover attorney’s fees when a unit owner defaults on a non-monetary obligation. Boards should look to amend these provisions to allow for legal fee recovery since there are many common situations where a condominium board is forced to bring action to enjoin a non-monetary default (unauthorized alterations, illegal use, unreasonable noise, and short-term rentals are just a few).
Read full articleFirst published: Apr 2016
Osberger v. 18 Mercer Equity Inc.Although incidental to the issue of legal fees, this case raises a point we have seen many times. When a city agency issues a violation, it is often (if not always) issued against the building and not the offending apartment owner. In some situations, an administrative law judge will allow an apartment owner to intervene or to take over the defense; in some instances he or she will not. It is important for a building, upon receipt of a violation, to be clear that the responsibility both for defense and to cure a violation and pay fines or penalties rests with the apartment owner. The court’s analysis of the Osbergers’ claim for attorneys’ fees under the co-op proprietary lease is noteworthy. The cooperative would not have been able to assert a claim for fees since the Osbergers were not in default, and a default was required under the lease. Our experience has been that, in situations like this, most boards would in fact demand its fees be paid by the shareholder.
Read full articleFirst published: Apr 2016
Osberger v. 18 Mercer Equity Inc.Although incidental to the issue of legal fees, this case raises a point we have seen many times. When a city agency issues a violation, it is often (if not always) issued against the building and not the offending apartment owner. In some situations, an administrative law judge will allow an apartment owner to intervene or to take over the defense; in some instances he or she will not. It is important for a building, upon receipt of a violation, to be clear that the responsibility both for defense and to cure a violation and pay fines or penalties rests with the apartment owner. The court’s analysis of the Osbergers’ claim for attorneys’ fees under the co-op proprietary lease is noteworthy. The cooperative would not have been able to assert a claim for fees since the Osbergers were not in default, and a default was required under the lease. Our experience has been that, in situations like this, most boards would in fact demand its fees be paid by the shareholder.
Read full articleFirst published: Sep 2011
Siegler v. 875 Tenant Corp. and Himmelberger v. 40-50 Brighton First Road Apartments Corp.There have been a number of cases that have addressed the parties’ entitlement to fees under co-op documents, including the proprietary lease and alteration agreements. Courts will interpret agreements as contracts, according to their terms. The court concluded that, as there was no default in Siegler, there was no basis upon which to award fees. Similarly, in Himmelberger, it appears as if the co-op was required to retain security to protect its residents, yet at the same time had no vehicle through which to charge the cost to the shareholder, Henderson. We believe that most proprietary leases are insufficient to cover the myriad circumstances we see time and again, where co-ops are called upon to perform services or address issues as a result of the action of a single shareholder. Unless the reimbursement or indemnification provisions of a lease are revised in accordance with current best practices, it is likely that all shareholders will be required to pay costs incurred by the co-op because of the acts of a single shareholder.
Read full articleFirst published: Sep 2011
Siegler v. 875 Tenant Corp. and Himmelberger v. 40-50 Brighton First Road Apartments Corp.There have been a number of cases that have addressed the parties’ entitlement to fees under co-op documents, including the proprietary lease and alteration agreements. Courts will interpret agreements as contracts, according to their terms. The court concluded that, as there was no default in Siegler, there was no basis upon which to award fees. Similarly, in Himmelberger, it appears as if the co-op was required to retain security to protect its residents, yet at the same time had no vehicle through which to charge the cost to the shareholder, Henderson. We believe that most proprietary leases are insufficient to cover the myriad circumstances we see time and again, where co-ops are called upon to perform services or address issues as a result of the action of a single shareholder. Unless the reimbursement or indemnification provisions of a lease are revised in accordance with current best practices, it is likely that all shareholders will be required to pay costs incurred by the co-op because of the acts of a single shareholder.
Read full articleFirst published: Jan 2011
Weich v. 308 West 104, LLC.Although this case concerns a rental landlord and tenant, it discusses principles which are equally applicable to cooperatives, keeping in mind that a cooperative corporation and shareholder are in a landlord/tenant relationship. While not directly applicable, the decision is also instructive with respect to condominiums. First, the court allowed the defendant/landlords to make a motion to dismiss certain elements of their tenants’ claimed damages, parsing the complaint so that the issues at trial would be limited to those which the tenants could, if successful, actually recover. While each case is different, whether to limit the type of damages a plaintiff can seek at trial is often a consideration for a defendant. The court here found that there were certain items for which damages were unavailable based upon applicable legal principles. For example, the unlawful eviction statute the tenants relied on to claim the right to treble damages will not be invoked when an apartment is rendered uninhabitable; it requires a forcible ouster. Moreover, although the tenants expended attorneys’ fees in other proceedings, the court found that they could not be recovered in this action. Further, there was no basis upon which the tenants could claim they were entitled to recover the cost of their experts. On the other hand, the court did not dismiss – at this stage – the tenants’ claims for personal property damage, the cost of movers, and the cost of living in another apartment. As to those, the tenants would be allowed to present their proof and have a jury or judge decide.
Read full articleFirst published: Dec 2010
Gotham Partners, LP v. High River Limited PartnershipIn this case, and in the Batsidis case, the appellate court for Bronx and New York Counties prescribed the circumstances under which parties to a contract (including, we believe, proprietary leases, alteration agreements and bylaws) can obtain an award of attorneys’ fees. Batsidis specifically addressed the circumstance where there was no litigation, yet fees were expended as a result of a particular shareholder’s alteration. Given the clear language in an attorneys’ fees provision in the alteration agreement at issue in that case, attorneys’ fees were awarded. Gotham addressed what happens when there is no applicable attorneys’ fees clause but a party attempts to obtain an award of such fees relying on an indemnification provision in the contract. What we take from these cases is that if the language in an attorneys’ fees section in the agreement is clear and unequivocal, it will be interpreted according to its meaning. If, however, a party seeks attorneys’ fees based upon a contract’s indemnification provision (rather than a section addressing legal fees specifically), the language of the indemnification provision must be specific and explicit that it was intended to apply where one party to a contract prevails in a lawsuit and seeks attorneys’ fees from the other. Given the recent case law concerning attorneys’ fees and the interpretation of different contractual provisions, we suggest that boards ask their counsel to review the provisions in their governing documents and alteration agreements in order to make sure the documents are in line with the most recent rulings.
Read full articleFirst published: Jan 2008
Ash v. Board of Managers of The 155 CondominiumIt appears as if the lower court attempted to circumvent the plaintiff’s right to free speech by finding that his actions were detrimental to the discovery process and the administration of the court’s calendar. The appellate court has reminded us, however, that a litigant will not be barred from speaking except under the most egregious circumstances. Interestingly, the issue of whether plaintiff’s communications rose to the level of defamation that may allow the board members to sue was apparently not raised. In any event, freedom of speech prevailed here.
Read full articleFirst published: Nov 2006
Silverman v. 875 Tenant Corp.This was initially an action brought by a shareholder against the co-op that was unsuccessful. As a result of the shareholder’s failure, the co-op sought to have the shareholder reimburse the co-op for its legal expenses as provided in the proprietary lease. The co-op succeeded and the case should be a warning to a shareholder who sues his or her co-op that, if the shareholder does not prevail, there is a good chance that he or she may end up paying the legal fees both for the shareholder and the co-op. Such fees may be quite substantial.
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