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Friday, December 21, 2018

https://twitter.com/dizozza/status/1076344113430188032

AFFIRMATION in OPPOSITION TO PETITIONER'S MOTION 
and in SUPPORT OF Respondent's MOTION for ATTORNEY FEES

STATE OF NEW YORK    )
)  SS.:
COUNTY OF NEW YORK   )

The undersigned, PETER W. DIZOZZA, an attorney duly admitted to practice law before the Courts of the State of New York, hereby makes and affirms the following statements upon information and belief, under the penalty of perjury pursuant to CPLR Rule 2106.

1. I am the attorney for the respondent in the above entitled action.  

2.  I respectfully request the court to allow me to clarify the Statement of Facts offered by Petitioner's attorneys as follows.  

3.   Respondent DID NOT breach the First Stipulation.  Petitioner moved to restore the proceeding to the court's calendar for a hearing to determine whether the Respondent had breached the  first stipulation.

4.  Petitioner's attorneys inaccurately quote the wording of our second stipulation by stating as follows: “All breaches were deemed material.”   The stipulation states that “All terms of this stipulation are material and non are de minimus.” 
  
5.   Judge Stoller found that respondent had breached the Stipulation in three ways: “Respondent’s failure to provide access on the date in the Stipulation and failure to comply with requirements concerning the washing machine in the subject premises constitute grounds to vacate any stay on the execution of the warrant of eviction, in addition to Respondent’s throwing of kitty litter outside the door of the subject premises.”   

6.  By Decision/Order dated May 7, 2018 Judge Stoller granted Petitioner permission to restore if Mr. Hoving did not perfect the appeal in time for its October Term. 

7.  Respondent filed his own notice to appeal and Judge Stoller gave him until the October Term to perfect it.  With no activity it would be administratively dismissed.   Petitioner moved three times to dismiss it and timely sent notice to me of their motions twice.   
8.  On October 31, 2018, Petitioner's motion was granted and Respondent's appeal was dismissed WITHOUT OPPOSITION.  There was no opposition because I did not receive petitioner's mailing of the motion until its return date.

9.  This court determined reasonable hourly billing rates of petitioner's three attorneys in its May 7, 2018 Order only to set respondent's undertaking, without addressing the hourly value of the work these attorneys provided to petitioner, respondent and the housing court.

10.   These attorneys bill between $225 and $420 an hour, often 3 at a time, never less than 2. They believe it is a worthwhile use of Housing Court Resources to establish that respondent owes them for responding to their assault because of how much experience they have.

11.  The attorneys for Petitioner have since increased their demand to the court from approximately $200,000 to approximately $220,000 because Respondent filed his own notice of appeal.

12.  Since respondent would be paying for their motions, they did not wait for Respondent's notice of appeal to be administratively dismissed, nor did they need to follow Judge Stoller's decision allowing them to restore if Mr. Hoving did not perfect the appeal in time for its October Term. 

13.  Instead they moved three times to dismiss and as I received their motion papers twice, I opposed twice.   Opposition to their second motion extended respondent's time into the December Term, and the Appellate Term third granted their third motion without opposition because I did not receive it until its return date.

14.  Respondent was unable to post an undertaking and did nothing about going further with his notice of appeal.  He Defaulted.  Judge Stoller already addressed the futility of perfecting the appeal as respondent's conviction in a concurrent  criminal matter was dispositive and would be easily incorporated into the record herein.  


15.   The issues supporting denial of fees and dismissal of further litigation are as follows:

A) Respondent did not receive notice of the most recent appeal dismissal motion until its return date.  The motion was granted without opposition because petitioner did not provide respondent with the opportunity to oppose.  Furthermore, Judge Stoller's order did not require petitioner to engage in this further motion practice.

B)  Petitioner conducted a hearing concurrent with a dispositive criminal matter.  As to the dispositive breach claimed, petitioner's attorneys did not prevail under preponderance when DA prevailed beyond reasonable doubt.

C)  Consider that the reasonable cost for Prosecution of a proceeding applies here.  For Petitioner’s attorneys, there was no prosecution, only a hearing.  The attorney fees for the prosecution of the proceeding by the people’s DA was covered for petitioner by the taxpayers.  That conviction unequivocally establishes the breach of the stipulation.    

D)  Petitioner may seek fees only in the event respondent defaults under the terms of his agreement, which respondent never did.

E)  Petitioner prevailed on three of their eight allegations of a stipulation breach.

F)   Petitioner never proved a prior breach by respondent.  Petitioner avoided the expense of proving alleged breaches by entering into a stipulation of settlement, and it is from that stipulation that petitioner’s attorney fees began accruing.  That respondent breached the first stipulation is a false statement.

G) Petitioner further wasted court resources and muddied litigation fees by filing a concurrent spurious action to evict respondent for having a dog.  (Landlord Tenant Index # 7793/2016 discontinued on the same day as a December 15th, 2017 inspection.)  (EXHIBIT)

H) Petitioner's attorneys should not make their victim pay for attacking him from every possible angle, even though they succeeded in destroying his life and evicting him from his home. 

16.   The settlement document which controls the timeline of litigation for this court to consider is our Stipulation of Settlement dated November 26th, 2016.  The following provision in that stipulation enables petitioners:

“In the event that Respondent defaults under the terms of this stipulation, petitioner shall be entitled to seek the full extent of its reasonable attorneys' fees incurred to date and any future legal fees that Petitioner may incur in the prosecution of this proceeding.”

17.  Respondent can only seek attorney fees if respondent defaults upon the terms of his agreement, and while Judge Stoller's eviction decision found violations which did not amount to a breach, and while he did find three breaches which allowed eviction, respondent never defaulted upon the terms of this agreement.  In his May decision, Judge Stoller specifically uses the word default with its meaning as the parties intended.  

18.   The default terms of our stipulation specifically address the timeliness and amounts of respondent's payments, and respondent always met them, and no he did not meet the timeliness required to perfect his appeal, but rather defaulted on that.

19.   Petitioner proved to the court throughout the hearing how important this finding of default was to petitioner's ability to seek fees, because each time we went to court, petitioner's attorneys opened the proceeding with a motion for default upon the terms of the stipulation and each time the court denied that motion.

20.  I beg the court as represented by Judge Stoller.  I respect that the court is authorized and legally obligated to enforce our mishmash agreement.  Please allow me, an attorney who is dreaming of billing at $150 an hour, as co-drafter, to do my best to articulate my understanding of what I wrote in collaboration with our $420 an hour David Tendler in order to bind the parties in the event of a default...

21.  Please note, your Honor, that you also properly used the word default in your May Decision in that respondent did indeed default on perfecting his appeal by the the Appellate Court's October Term, but not upon the payment terms relating to default in the stipulation.


22.  As far as backdating attorney fees, there were no reasonable attorney fees owed by respondent to date of November 26th, 2016 because both parties entered into a stipulation of settlement without addressing petitioner's allegations up until that time.

23.  The entire cost and wasting of housing court resources in conducting a hearing on a breach of the second stipulation, delaying the prosecution of the dispositive criminal matter, is what makes deniable petitioner's motion.

24.  To conduct a hearing during a concurrent dispositive criminal trial, accrued fees that are unreasonable.

25.  Petitioner conducted a hearing simultaneously with a dispositive criminal prosecution.  

26.  And now petitioner's attorneys provide a record of their billing.

27.  Legal Aide and District Attorneys delayed and adjourned their prosecution because they had to obtain transcriptions and analyze sworn testimony of the same witnesses that of course were appearing in the criminal matter, and they were doing so as petitioner produced additional sworn testimony by a hearing that the criminal matter's outcome could have resolved in 10 minutes.
     
28.  The $200,000 worth of petitioner attorney work failed to prove the very matter the DA proved. 
  
29.  All housing court success to petitioner is the result of respondent's irrational and confused actions.  Respondant lost his home not because of any work of petitioner's attorney but because of his own actions taken under the color of “righteousness,” through duress and confusion.  

30.  In addition, Petitioner can not charge respondent for those allegations he did not prove.  

31.  Must the court surmount a layperson's confusion regarding the criminal nature of “prosecution” and its non-applicability to conducting a simple hearing? 
  
32.  Petitioner is seeking a punitive penalization of his tenant adversary for defending himself based upon whatever fight that tenant could muster.  

33.  Petitioner's attorneys want to court to charge respondent for defending himself!

34.  If we factor in that petitioner's litigation went on for so long ONLY because that is how long it took for the DA to win the case for petitioner on a breach that we agreed was a dispositive breach, for which a hearing would take 10 minutes, then we can dismiss this motion as moot.

35.  We agreed that if respondent was found guilty that there was no issue as to whether respondent breached the stipulation.  

36.  That criminal prosecution was prolonged for over a year, because petitioner's attorneys ran a hearing concurrent with it, at the expense of precious housing court resources, and at the unreasonably impressive hourly rate charged by Petitioner's attorneys while we the taxpayers were paying the City DA.
  
37.  Petitioner's attorneys' willingness to go forward when the dispositive matter was before Criminal Court DELAYED THE CRIMINAL COURT MATTER WITH OVERLAPPING TESTIMONY which both legal aide and the ADA had to obtain from housing court as it was being produced.  

38.  Then, please note that for all their efforts, Petitioner's attorneys themselves FAILED TO PROVE THE CRIMINAL MATTER by a preponderance of the evidence when the taxpayer funded District Attorney's Office was able to prove it beyond a reasonable doubt.

39.  So we return to our stipulation.  Our terms and are clear in our collaboratively crafted agreements.  The shades of meaning are specifically agreed to be not de minimus:  Therein the actions in each paragraph are defined as either Breach, Violation or Default.  Respondent agreed that petitioner could only seek attorney fees if respondent defaults upon the terms of his agreement.  

40.  In the decision permitting eviction of respondent from his home, the court found violations which did not amount to a breach, and three incomprehensible breaches which as stipulated by the unequal parties allowed for execution of eviction.  However, respondent never defaulted upon the terms of this agreement.  The default terms of the agreement address issues of timeliness of payments.

41.  To prove to the court how important this finding of a Default was to petitioner's ability to seek fees, each time we went to court petitioner's attorneys opened the proceeding with a motion for default upon the terms of the stipulation for failing to pay in time, and each time the court denied that motion because respondent had not defaulted.

42. Petitioner won eviction on the limited grounds of what respondent did as a result of harassment and confusion.

43. Petitioner's attorneys by moving this court to address attorney fees on the above matter raise substantive issues to be considered by the court before further wasting its resources herein.   

44.  Reasonableness is the standard.  This is not a standard upon which a legal professional needs to assess.  What would a layperson believe is reasonable in the petitioner's extravagant and wasteful prosecution of this proceeding? 
 
45.  This is why the court must stop here and deny petitioner's motion.  We cannot surmount the confusion regarding the criminal nature of “prosecution” and its non-applicability to conducting a simple hearing after which the petitioner is using the Housing Court resources to seek punitive penalization of his tenant adversary simply for defending himself.  

46.  Nor need we return to housing court now when the parties themselves agreed only a default would allow petitioner to seek attorney fees.

47.  Petitioner's own attorneys, not by their exploitation of  housing court resources, but by causing respondent, by his own actions, to crack under the psychological perception of persecution that caused him to lose his home.

48.  Now they ask the court to call its hearing a "prosecution of this proceeding," when in fact they delayed prosecution of the criminal proceeding that was dispositive of this matter, and which had a price tag of work by other attorneys, the district attorney and legal aide, who are on the public payroll.  
 
49.  Most recently, without giving respondent the opportunity to oppose their most recent motion, such that it was granted on default, they are now claiming that the more respondent defended himself the more he would have to pay.
50.  This is counter-productive to our exercise of our constitutional rights. 

51.  In the interest of justice the court must  dismiss further litigation on this matter because our stipulation terms and are clear in our collaboratively crafted agreement and their shades of meaning are specifically agreed to be not de minimus.   Petitioner won eviction in housing court only on the limited breaches from what respondent did as a result of harassment and confusion.  Again this is while the criminal matter is pending and being delayed by this concurrent litigation.

52.   Is it a worthwhile use of housing court resources to consider the nominal attorney fees earned ON THE LIMITED GROUNDS UPON WHICH PETITIONER PREVAILED.
Petitioner prevailed as follows:

53. To quote from the February 22nd decision, this eviction is occurring because “Respondent’s failure to provide access on the date in the Stipulation and failure to comply with requirements concerning the washing machine in the subject premises constitute grounds to vacate any stay on the execution of the warrant of eviction, in addition to Respondent’s throwing of kitty litter outside the door of the subject premises.”

54.  Specific to a nuisance stipulation eviction, while respondent did not admit to throwing kitty litter into a common vestibule, he mistakenly relied upon Judge Stoller's ability to see and take his own judicial notice of the following:   

Petitioner’s surveillance video evidence of the area where kitty litter was allegedly thrown was not the area cleaned by respondent's witness

Nor was the physical evidence held by the court gathered from where the alleged kitty litter would have landed.
  
55.  As for respondent not being home when respondent sought to invade the home with an inspection on December 15th, 2016, respondent admitted that he was not and could not be there that evening.  A simple admission costs nothing to prove.  Furthermore, the stipulation specifically included that December visit in the invasion of privacy notice requirements.

56.  And the third finding warranting respondent's eviction was also an admission by respondent.  

Respondent simply left in his apartment a portable washing machine, when all he had to do to comply with the stipulation was to take it out.  Instead respondent installed mounting and piping that only served to show Judge Stoller how challenged respondent was, and how far removed from understanding his agreement he was in trying to appease petitioners.  His confusion, and mine for that matter, regarding mounting of portable type of washing machine, became a windfall for petitioner.

Respondent’s own plumber refused to help him comply with petitioner's requirements, but then petitioner was therafter able to bring that same plumber to appear on behalf of petitioner to show the court how ill-advised and misguided respondent was in trying to mount a portable washing machine.

57. The court found that these three irrational actions of respondent rose to the level of a breach of the parties’ arms length stipulation, such that the court granted petitioner the right to evict their rent-stabilized tenant on a nuisance holdover for actions that no one would consider rise to the level of evict-able nuisance.  Petitioner thereafter returns to our carefully worded stipulation to bring us back to housing court.  

58. The prior pleadings petitioner used to convince Judge Stoller of its longstanding problem with respondent, are unproven legal documents.  The parties settled the dispute they created without considering their merit when the only 8 issues petitioner litigated resulted in an eviction AS THOUGH there was a proven prior history.  

59. The court in its interpretation of the stipulation has confirmed that therein the parties made a distinctions between deminimus terms in the stipulation, specifically between default, violation and breach.  

There can be no disagreement between the parties over the interpretation of the terms without confirming the degree to which there was not a meeting of minds and that the stipulation should not be enforced.
  
60.  Although the court lets the stipulating litigants chart their own course, the court interpreted for us what course we charted.  

The court has already granted petitioner the leeway that he did not, even though the stipulation says he must, notify the parties while exercising a right of inspection on December 15th, 2016.  

The court gave petitioner the right not to follow the terms of the stipulation by stating that the stipulation itself was all the notice respondent deserves, even though the December Inspection is included in the notice requirements agreed to by the parties.
   
61.  The court interpreted the stipulation in favor of petitioner although its end result was unconscionable.  

Therefore let the court allow us to rely upon the shades of meaning of the words so expensively crafted therein. After all, Petitioner is asking him to pay for writing them.

62. The fact that respondent was represented by an attorney, me, resulted in petitioner having the support of the court in awarding the petitioner the right to its unconscionable remedy.  


63. There is a reason Petitioner in his prior motions for fees specifically misquoted our stipulation by writing therein that “All breaches were deemed material.”  

64. The stipulation reads as follows:  “All terms of this Stipulation are material and none are de minimus.”

65. The TERMS of the stipulation are Violation, Default and Breach, and none of the shades of meaning between those three terms are de minimis.

66. With regard to “de minimus,” the housing court infers case law but it also respects the meaning of de minimus within the understanding of the parties.

67. Petitioner turned housing court into stipulation enforcer.  It should not be too much for respondent to ask of the court, therefore, that it address the precise language of the stipulation.  

68. If the court is to permit the parties to rely upon breaches of the stipulation as the basis for respondent losing his home, then only the plain language of “legal” terms should apply.  Therefore, please respect that the stipulation does not say all breaches were deemed material.  The stipulation says all terms are deemed material.  

69.   The court has already done enough decoding of the parties' stipulation in favor of petitioner.  For example, and not to reopen the proceeding but to consider this in light of the petitioner's sought after attorney fees, the stipulation's Paragraph 16 applies to stipulation paragraph 10 because 10 states that the visit on December 15th at 7PM is “to inspect.”  Therefore that invasion into Respondents home, as all invasions therein, are governed by Paragraph 16, which sets the precise terms by which respondent grants Petitioner his right to inspect, his right to invade the privacy of respondent, and thus the December inspection is specifically mentioned and included in Paragraph 16.  Nonetheless the court found therein a breach.  Should respondent now be obligated to pay petitioner's attorneys for the cost of this confusion? 
70.  Respondent prevailed on most of the issues raised by the petitioner, and did so at great cost, both emotional and monetarily.  And he could not bear the cost of, but rather defaulted in appealing this matter. 

71.  Therefore, in establishing the reasonable charge for attorney fees is the clarity and specificity that the attorneys have achieved in their stipulation bringing us to a hearing in the first place.

72.  A careful reading of the stipulation establishes that the terms Breach, Violation and Default are clearly not synonymous.  Each is used independently in a differing paragraph and the three terms are assigned specific meaning in each of their appearances therein. 
 
73.  It is that careful and concise word-work that this attempt at achieving a court-ordered hand-out for the benefit of the Petitioner at the expense of the Respondent is based.
  
CONCLUSION
74.  Again, I come forward for respondent to oppose the actions of petitioner and his attorneys.  Now they will to ask the court to penalize respondent for opposing this, their latest frivolity by adding more fees for having to address it.  

75.  I also wish to draw your honor's attention to the conclusion of their current motion to you to restore for a housing court hearing on attorney fees.  They conclude their affirmation by calling this motion my motion, which they further conclude should be denied.
76.  Yes, it is petitioner's motion and yes it should be denied.  

77.  I understand that in proving respondent is crazy that Petitioner's attorneys have lost their minds but now they are trying to make me lose mine too.

78.  I suppose yes, it is a good idea to turn my opposition into a motion to dismiss any further imposition on housing court resources.  

79.  I am a city taxpayer, too, and would horrified to see how million-dollar-attorneys exploit the resources of our housing court.  

WHEREFORE, this proceeding must be dismissed in the interest of justice.  There is no issue to support petitioner's claim that it is seeking “reasonable” attorney fees.  Petitioner agreed to do so only for costs in prosecution of the proceeding, said costs ultimately born by the taxpayers in the successful criminal proceeding prosecuting respondent.  Petitioner also agreed to seek fees only in the event respondent defaults, which he never did, and that the parties have such other further and/or different relief as the court deems just and proper.

Dated: New York, New York 
November 21, 2018


____________________________
PETER W. DIZOZZA, Esq.
Attorney for Defendant
321 East 12th Street #8
New York, New York  10003
(917) 915-7635
TO: CORNICELLO, TENDLER ET AL
Attorney for Plaintiff 
2 Wall Street (20th Floor)
New York, NY 10004
212-994-0260
EXHIBITS 

A Civil Court timeline 
B Criminal Court timeline 
C Respondent's affirmation in opposition of petitioner's concurrent eviction action and stipulation of discontinuance.  

LANDLORD/TENANT/INDEX #: 66301/14