135 East 57th Street, LLC v. 57th Street Day Spa, LLC ( 2015 )

135 E. 57th St., LLC v 57th St. Day Spa, LLC (2015 NY Slip Op 01897)

135 E. 57th St., LLC v 57th St. Day Spa, LLC

2015 NY Slip Op 01897

Decided on March 10, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 10, 2015
Friedman, J.P., Sweeny, Acosta, DeGrasse, Gische, JJ.

14461 602167/09

[*1] 135 East 57th Street, LLC, Plaintiff-Respondent,

v

57th Street Day Spa, LLC, et al., Defendants, GH Day Spas, Inc., et al., Defendants-Appellants.

Law Office Of Mark Krassner, New York (Mark Krassner of counsel), for appellants.

Harwood Reiff LLC, New York (Donald A. Harwood and Simon Reiff of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Charles E. Ramos, J.), entered September 25, 2013, which, to the extent appealed from as limited by the briefs, awarded plaintiff attorneys' fees in the amount of $69,106.25 against defendants-appellants (defendants), pursuant to an order, same court and Justice, entered February 21, 2013, which had granted plaintiff's motion to confirm the report of a special referee, entered July 27, 2012, unanimously reversed, on the law, without costs, the judgment vacated, plaintiff's motion denied, and the matter remanded for a new hearing and determination as to the amount of reasonable attorneys' fees incurred as a result of defendants' discovery defaults.

The admissible evidence submitted at the hearing was not sufficient to determine the reasonable amount of attorneys' fees incurred by plaintiff as a result of defendants' discovery defaults. Accordingly, the motion court should have rejected the Special Referee's report recommending that plaintiff be awarded $69,106.25 in attorneys' fees (see Kardanis v Velis , 90 AD2d 727, 727 [1st Dept 1982]). The Special Referee erred in admitting a spreadsheet into evidence as a business record pursuant to CPLR 4518(a), since the document was prepared by plaintiff's counsel for use at the hearing (see National States Elec. Corp. v LFO Constr. Corp. , 203 AD2d 49, 50 [1st Dept 1994]), and was not supported by a proper business record foundation (see West Val. Fire Dist. No. 1 v Village of Springville , 294 AD2d 949, 950 [4th Dept 2002]). Nor was the limited testimony provided by an associate of the law firm representing plaintiff sufficient to establish that the amount of attorneys' fees and expenses was fair, reasonable and incurred as a result of the discovery defaults (see Bankers Fed. Sav. Bank v Off W. Broadway Devs. , 224 AD2d 376, 377-378 [1st Dept 1996]).

Since it is clear that plaintiff is entitled to an award of attorneys' fees, we remand to the motion court for a new hearing and determination (see 224 AD2d at 376, 379).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 10, 2015

CLERK