Motion for Child Support in 270 West End Tenants Corp. v. 266 Weave, Llc, Todd Wider| Trellis.Law

On January 09, 2017 a Motion-Secondary was filed involving a dispute between 270 West End Tenants Corp., and 266 Weave, Llc, Todd Wider, for Real Property - Other (Declaratory/Inj. Relief) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 09/13/2019 05:02 PM INDEX NO. 150228/2017
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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270 WEST END TENANTS CORP., Index No.: 150228/2017
Motion Seq. No. 3
Plaintiff, Special Referee Lancelot Hewitt
-against-

266 WEAVE, LLC, and TODD WIDER,

Defendants.

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DEFENDANTS’ POST-HEARING MEMORANDUM OF LAW IN FURTHER SUPPORT
OF THEIR APPLICATION FOR REIMBURSEMENT OF PROFESSIONAL
ENGINEERING AND ATTORNEYS’ FEES AND RELATED COSTS

STEWART OCCHIPINTI LLP
Frank S. Occhipinti
Erik T. Sorensen
Lauren A. Valle
One Exchange Plaza
55 Broadway, Suite 1501
New York, New York 10006
(212) 239-5500
focchipinti@somlaw.com
Attorneys for Defendants

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TABLE OF CONTENTS

PRELIMINARY STATEMENT ...............................................................................................................1
ARGUMENT ..............................................................................................................................................11
I. THE PROFESSIONAL FEES AND RELATED COSTS INCURRED BY DEFENDANTS
ARE INDISPUTABLY REASONABLE AND NECESSARY ...........................................................11
II. 270 WEST END FAILED TO OFFER ANY CONTRADICTORY EVIDENCE AT THE
FEE HEARING ......................................................................................................................................13
III. DEFENDANTS ARE ENTITLED TO REIMBURSEMENT OF THEIR
PROFESSIONAL ENGINEERING AND ATTORNEYS UNDER THE INDEMNITY
PROVISIONS OF THE 2017 INTERIM ORDER .............................................................................15
IV. DEFENDANTS ARE ALSO ENTITLED TO THEIR ENGINEERING AND
ATTORNEYS’ FEES UNDER RPAPL SECTION 881 .....................................................................16
V. THE COURT HAS INHERENT AND STATUTORY AUTHORITY TO AWARD
DEFENDANTS THEIR ENGINEERING AND ATTORNEYS FEES ............................................18
CONCLUSION ..........................................................................................................................................20

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TABLE OF AUTHORITIES
Cases
22 NYCCR 130-1.1(a) ................................................................................................................................ 19
437 West 16th Street, LLC v. 17th & 19th Assoc., LLC, 27 Misc. 3d 1230(A), 1230(A), 911 N.Y.S.2d 392,
692 (Sup. Ct. New York Cnty. 2010) ..................................................................................................... 15
Arbor Hill, 369 F.3d at 97-98 ..................................................................................................................... 12
Banc of Am. Credit Prods., Inc., v. Guidance Enhanced Green Terrain, LLC, 2017 N.Y. Misc. LEXIS
3401 *36-37, 2017 NY Slip Op 31910(U)(Sup. Ct. New York Cnty. 2017).......................................... 16
Bergerson v. New York State Office of Mental Health, 652 F.3d 277, 289 (2d Cir. 2011) ......................... 11
Crossroads ABL LLC v. Canaras Capital Mgt., LLC, 105 A.D.3d 645, 645-46, 963 N.Y.S.2d 645 (1st
Dept. 2013) ............................................................................................................................................. 16
DDG Warren LLC v. Assouline Ritz 1, LLC, 138 A.D.3d 539, 540, 30 N.Y.S.3d 52 (1st Dep’t 2016) ...... 18
Grayson v. New York City Dept. of Parks & Recreation, 99 A.D.3d 418, 952 N.Y.S.2d 8 (1st Dept. 2012)
................................................................................................................................................................ 19
Hooper Associates, Ltd.v. AGS Computers, Inc, 74 N.Y.2d 487, 548 N.E.2d 903 (1989) ......................... 16
J.S. Nicol, Inc. v. Peking Handicraft, Inc., 2008 WL 4613752, at *18 (S.D.N.Y. Oct. 17, 2008) ............. 12
Levy v. Carol Mgt. Corp., 260 A.D.2d 27, 33-34, 698 N.Y.S.2d 226 (1st Dept. 1999) .............................. 19
Marmara, Inc. v. Pantoja, 2018 N.Y. Misc. LEXIS 1764 *12, 2018 NY Slip Op 30906(U) (Sup. Ct. New
York Cnty. 2018) .................................................................................................................................... 19
Matter of North 7-8 Investors, LLC v. Newgarden, 43 Misc.3d 623,632, 982 N.Y.S.2d 704 (Sup. Ct.
Kings Cnty. 2014) ................................................................................................................................... 18
Matter of North 7-8 Invs., LLC v. Newgarden, 43 Misc. 3d 623, 628, 982 N.Y.S.2d 704 (Sup. Ct. Kings
Cnty. 2014) ............................................................................................................................................. 18
Matter of Rosma Dev. LLC v. South, 5 Misc. 3d 1014(A), 798 N.Y.S.2d 713 (Sup. Ct. Kings Cnty. 2004)
................................................................................................................................................................ 17
Matter of Van Dorn Holdings, LLC v. 152 W. 58th Owners Corp, 149 A.D.3d 518, 518-19, 52 N.Y.S. 3d
316, 318 (1st Dep’t 2017) ........................................................................................................................ 18
Nestor v. Britt, 16 Misc. 3d 368 (N.Y. Civ. Ct. 2007) ................................................................................ 12
NYCRR § 130-1.1 ...................................................................................................................................... 19
PB 151 Grand LLC v. 9 Crosby, LLC, 2018 N.Y. Misc. LEXIS 385, 2018 NY Slip Op 50163(U) (Sup. Ct.
New York Cnty. 2018) ............................................................................................................................ 18
Ponito Residence LLC v. 12th St. Apt. Corp., 38 Misc. 3d 604, 612, 959 N.Y.S.2d 376, 382-383 (Sup. Ct.
New York Cnty. 2012) ............................................................................................................................ 17
RPAPL 881 ................................................................................................................................................. 16
Sagittarius Broadcasting Corp. v. Evergreen Media Corp., 243 A.D.2d 325, 326, 663 N.Y.S.2d 160 (1st
Dept. 1997) ............................................................................................................................................. 16
Van Dorn Holdings, LLC v. 152 W. 58th Owners Corp., 2016 N.Y. Misc. LEXIS 3077, 2016 NY Slip Op
31598(U) (Sup. Ct. New York Cnty. 2016) ............................................................................................ 17

Other
22 NYCCR Section 130-1 .......................................................................................................................... 19
RPAPL Section 881 .................................................................................................................................... 16

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PRELIMINARY STATEMENT

Following an evidentiary hearing before Special Referee Lancelot Hewitt on July 15,

2019 (the “Fee Hearing”), this memorandum of law is submitted in further support of Defendants

Todd Wider and 266 WEAVE LLC’s (“Defendants”) request for reimbursement of the full

$142,188.29 in engineering and attorneys’ fees and related costs incurred through April 8, 2019

as a direct result of Plaintiff 270 West End Avenue’s (“270 West End”) negligent construction,

maintenance, proposed modifications, removal and reconstruction of the protective Sidewalk

Shed that is at issue in this case. Since Plaintiffs did not rebut Defendants’ proofs, call any

witness or submit any evidence at the Fee Hearing, Defendants should be awarded the full

amount of engineering and attorneys’ fees and related costs sought in this application.

As is evident from Justice Freed’s April 8, 2019 Interim Order (NYSCEF Doc. No. 161),

in which the Court referred this matter for a determination of the total amount to be reimbursed

to Defendants and further ordered 270 West End Avenue to make an interim partial payment in

the amount of $50,000.00 a legal basis exists to support Defendants’ request for reimbursement.

Against this backdrop, Plaintiff, which fully briefed its objections to the Court before the

referral, should not now be permitted to reargue the legal basis for such an award in its post-

hearing brief. Rather, by further Interim Order dated April 12, 2019 (NYSCEF Doc. No. 162),

Justice Freed limited her referral to “the calculation of the total amount of engineering and

attorneys’ fees and related costs” due to Defendants (emphasis supplied). For the reasons set

forth below, the Special Referee should conclude that Defendants are entitled to reimbursement

of all outstanding professional engineering and attorneys’ fees and related costs they have

incurred through April 8, 2019 in the amount of $92,188.29.

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SUMMARY OF FACTS

The total amount sought through April 8, 2019, the date established by the Court for the

purposes of this application, is $142,188.29. Plaintiff has already paid $50,000.00 of that sum,

leaving $92,188.29 due. There are two components of the total – legal fees and costs, and

engineering fees and costs. Reasonable attorneys’ fees and costs in the amount of $88,323.12

were incurred by Defendants solely to ensure that 270 West End (a) satisfies its obligation to

install and maintain a safe and code compliant Sidewalk Shed that protects the public and

Defendants’ property from injury or damage caused by the unsafe conditions on 270 West End’s

south façade; (b) provides Defendants with customary and appropriate indemnity and insurance

protections; and (c) fully complies with the terms of this Court’s Orders.

Similarly, the professional engineering fees and related costs in the amount of $53,865.17

were incurred to (a) study and comment upon multiple voluminous sets of engineering and

architectural plans and drawings prepared by engineers hired by 270 West End, almost none of

which met Building Code requirements, to modify, build additional scaffolding upon, and

ultimately remove and replace the illegal and unsafe Sidewalk Shed; (b) evaluate and comment

upon 270 West End’s request to perform a “rope inspection” and remediation work on 270 West

End’s south façade and (c) observe and monitor the work conducted by 270 West End’s

contractors during the removal and replacement of the unsafe and illegal Sidewalk Shed.

FEES INCURRED BETWEEN JANUARY 2017 AND JUNE 2017

Before this action was commenced in January 2017, Defendants engaged in extensive

discussions with 270 West End concerning 270 West End’s request for consent to construct a

Sidewalk Shed in front of Dr. Wider’s home. (Tr. 13:4-21). 1 Dr. Wider was ready to provide

1
“Tr.” and “Ex.” refer to the Transcript and Exhibits received into evidence at the July 15, 2019 Fee Hearing.

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consent to construction of the proposed Sidewalk Shed subject to 270 West End providing

appropriate indemnity and insurance protections and reasonable compensation. (Tr. 101:4-15).

Despite Dr. Wider and 266 WEAVE’s good faith attempts to reach an agreement, 270

West End commenced this action in January 2017 by Order to Show Cause. After hearing from

the parties, by Interim Order dated January 26, 2017 (the “ 2017 Interim Order”) (NYSCEF Doc.

No. 41), 270 West End was permitted to construct and maintain a Sidewalk Shed directly over

the stoop and in front of Defendants’ property subject to specific terms and conditions, including

insurance and indemnity rights and protections for Defendants, as set forth in the Interim Order.

Fees Incurred as a Result of 270 West End’s Immediate Violation of the Interim Order
Pursuant to the 2017 Interim Order, Plaintiff and its contractors were not permitted to

touch or come into contact with Defendants’ property during the installation of the Sidewalk

Shed. Nonetheless, while installing the Sidewalk Shed, and in direct contravention of the

Interim Order, workers employed by 270 West End’s contractor walked all over the limestone

cap on the front stoop of 266 West End, leaving dirty and rusty footmarks and damage to the

limestone. (Tr.15:1-16:6). Moreover, in constructing the Sidewalk Shed, 270 West End’s

contractor used oxidized structural elements that caused rust particles and rusty water from rain

and melting snow to fall on to and further damage the porous limestone located directly

underneath the Sidewalk Shed. (Tr.15:1-9). Likewise, the Sidewalk Shed, as constructed,

intrudes onto 266 West End and impedes Defendants’ use and enjoyment of the property as it

extends completely across the entire property, shrouds the front entrance in darkness and

shadows, blocks the second-floor windows, and obstructs sunlight and air. (Tr.13:7-13; 73:19-

25; Ex. K) 2. As a result of these conditions, Defendants’ were compelled in February 2017 to

2
Photos of the original Shed can be found in the appendix to Exhibit K, Photos 1-4.

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file a motion to require that 270 West End name Defendants as additional insureds on 270 West

End’s insurance policies, relief which this Court subsequently granted (Tr. 99:14-23), and

requiring that 270 West End take reasonable measures to protect Defendants’ property from

further damage. (Tr. 14:15-15:9; 16:12-17:17).

Thus, as established at the Fee Hearing, between January 2017 and June 2017,

Defendants incurred reasonable attorneys’ fees and costs of $18,693.16 solely to ensure that 270

West End satisfied its obligations under the terms of the Interim Order, and NYC Building Code.

EES INCURRED BETWEEN JULY 2017 AND APRIL 2018

Fees Incurred as a Result of 270 West End’s Flawed and Non-Compliant July 2017 Proposal
for Additional Scaffolding on the Sidewalk Shed

In July 2017, six months after this action was commenced, 270 West End submitted to

Defendants a proposed plan to, among other things, construct scaffolding on top of the Sidewalk

Shed to be used to perform repair and maintenance work on the south façade of 270 West End

(the “Supplemental Plan”). (Tr.19:11-21:13; 110:13-112:6; Ex. B). Defendants retained

Thornton Tomasetti, a structural engineering firm, to review and respond to the Supplemental

Plan. (Tr.21:22-23:12). Upon completing this review, in a report submitted to 270 West End in

January 2018, Thornton Tomasetti raised numerous safety concerns and engineering objections

to the proposed Supplemental Plan, including, but not limited to, the failure of the Supplemental

Plan to consider the load-bearing capacity and characteristics of the 266 West End roof and other

proposed supporting structural elements. (Tr.23:13-26:3; Ex. C). In short, Thornton Tomasetti

concluded that the Supplemental Plan was not viable, and, would likely cause substantial damage

to 266 West End and risk injury to workers, building occupants, and others. (Tr.112:23-113:12).

In light of the issues and objections raised in the Thornton Tomasetti report, 270 West

End advised Defendants and the Court in June 2018, more than five months after it received the

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Thornton Tomasetti report, that it was abandoning the Supplemental Plan. (Tr.26:17-24, 114:17-

22). Moreover, as set forth more fully below, as a direct result of Defendants’ own efforts, 270

West End subsequently admitted that the Sidewalk Shed to be incorporated into the

Supplemental Plan never had been in compliance with the Building Code and that this illegal and

unsafe Sidewalk Shed had to be replaced in its entirety. The Thornton Tomasetti invoices

submitted at the Fee Hearing reflect the services performed and fees charged by Thornton

Tomasetti between June 2017 and January 2018, in the amount of $9,336.12, to review and

respond to the Supplemental Plan and prepare the January 2018 report. (Tr.145:17-146:1; Ex. Q).

Similarly, Defendants are entitled to reimbursement of their related attorneys’ fees

incurred in connection with Thornton Tomasetti’s review and comments upon the Supplemental

Plan and preparation of its January 2018 report. As set forth in the Stewart Occhipinti invoices,

the attorneys’ fees and costs in the amount of $6,405.91 incurred by Defendants in this matter

between July 2017 and April 2018 consist almost entirely of fees related to Thornton Tomasetti’s

review and response to the Supplemental Plan. (Tr.27:10-28:1; Ex. A).

FEES INCURRED BETWEEN MAY 2018 AND APRIL 2019

Fees Related to Defendants’ Discovery of 270 West End’s Unlicensed Architect and Engineer

Beginning around May 2018, as a result of Defendants’ unilateral efforts and at

Defendants’ own cost and expense, Defendants discovered further evidence of 270 West End’s

pattern of misrepresentations, negligence, and inaction. For example, Defendants first advised

the Court at a June 2018 Status Conference that both the architect and engineer hired by 270

West End to submit and certify the plans to obtain the DOB permit required to construct the

Sidewalk Shed, as well as the Supplemental Plan to build further scaffolding on the Sidewalk

Shed, both had their professional licenses revoked or suspended. (Tr.33:16-21).

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Specifically, the engineer who certified the Sidewalk Shed plans was suspended by DOB

for falsely certifying applications for non-code compliant projects submitted to DOB. Moreover,

the architectural firm that prepared the original Sidewalk Shed plans and Supplemental Plans

was no longer in business. (Id.). 270 West End had not brought any of these relevant issues to

the attention of the Court or Defendants. Immediately thereafter, Defendants also undertook to

determine the status of the DOB permit for the Sidewalk Shed, since 270 West End had plainly

failed to keep Defendants and the Court properly informed. Accessing public information on the

DOB website, Defendants learned that the permit for the Sidewalk Shed was in fact revoked by

DOB in February 2018. (Tr.43:11-25). As a result of 270 West End’s inexcusable negligence

and inaction, 270 West End was ordered to immediately retain a licensed engineer to determine

whether the Sidewalk Shed complied with all NYC Building Code requirements and to report

back to the Court and Defendants. (Tr.34:5-8).

Fees Related to 270 West End’s Admission that the Sidewalk Shed Was Unsafe and Illegal

In a June 22, 2018 submission to the Court, 270 West End reluctantly admitted that the

Sidewalk Shed was not and never had been in compliance with the Building Code. (Tr.35:23-

36:23; Ex. E). In particular, 270 West End’s own newly hired engineer, Plan B Engineering,

admitted that the Sidewalk Shed as designed and as built did not meet the 300 pounds per square

foot (“psf”) load requirements of the Building Code. (Ex. E). In fact, a number of critical

structural elements of the Shed were found to have load capacities as low as 50 psf. (Id.).

Fees Related to 270 West End Avenue’s Submission of Further Non-Compliant Shed Plans

Even after its own engineer admitted that the Sidewalk Shed was illegal and must be

modified or replaced, 270 West End continued its pattern of delay, inaction and negligence.

Recognizing that the illegal and unsafe Sidewalk Shed needed to be modified or replaced

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immediately, Judge Freed ordered 270 West End to provide to Defendants certified plans to

bring the structure into compliance with the Building Code. (Tr.34:5-8).

Defendants retained Thornton Tomasetti to review and comment on the July 30

Replacement Shed plans prepared by 270 West End’s new engineers. (Tr.37:3-38:7; 117:17-

118:7). Upon reviewing the Replacement Shed plans, Thornton Tomasetti concluded in an

August 6 report that these plans, like the original Shed plans submitted in January 2017, and the

Supplemental Plan submitted in July 2017, also failed to satisfy the requirements of the Building

Code. (Tr.38:16-40:6; Ex. F). In fact, many of the structural and other elements of the proposed

Replacement Shed, like the existing Shed, did not meet the load bearing and wind load capacities

required by the Building Code and thus did not provide sufficient protection to the public and

Defendants’ property. (Tr.118:8-119:12; Ex. F). As part of this review, Thornton Tomasetti also

determined that the existing Sidewalk Shed was not built according to the plans submitted by

270 West End to DOB and this Court in January 2017. (Tr.40:1-6; 115:20-116:2). This is work

that 270 West End should have, but failed, to do.

As a result of the flaws raised in the August 6 Thornton Tomasetti report and recognizing

that the July 30 Replacement Shed Plans failed to satisfy Building Code requirements, 270 West

End hired yet another engineering firm to prepare a new set of plans (Tr.45:1-21). On September

14, 2018, as directed by the Court, 270 West End submitted to Defendants a new set of plans for

the Replacement Shed prepared by Plan B Engineering. (Id.; Ex. H). Upon reviewing the

September 14 Replacement Shed plans, Thornton Tomasetti, in a report dated September 21,

2018, raised a number of questions concerning the structural integrity of the proposed

Replacement Shed including the construction of the proposed parapet wall and the load bearing

capacities of other structural elements of the proposed Replacement Shed. (Tr.119:13-121:6; Ex.

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I). Plan B Engineering amended the plans to reflect Thornton Tomasetti’s comments and bring

the revised plans into compliance with the Building Code. (Tr.121:13-25).

Fees Related to 270 West End’s Proposed But Later Abandoned Façade Inspection

At a July 2018 Status Conference, 270 West End, for the first time, also advised the

Court and Defendants that it wanted to perform a further “inspection” of its south façade, directly

above the 266 West End roof. At Defendants’ request, the Court directed 270 West End to

provide Defendants with information detailing the scope of the proposed inspection. Despite the

fact that this work would take place directly above the glass mansard panels and glass skylight

on Defendants’ roof, 270 West End did not offer to provide any protection against damage to the

roof, including these glass elements. (Tr.40:17-41:17). To identify the risks presented by the

work that 270 West End proposed, Defendants retained Thornton Tomasetti to review and

comment on the documents and information provided by 270 West End. (Tr. 136:13-140:20). As

directed by the Court, the parties’ architects and engineers subsequently conferred by telephone

to discuss the proposed terms and conditions of this proposed façade inspection. (Tr.42:5-9).

Counsel for Defendants also engaged in negotiations with 270 West End’s counsel

concerning the protections to be provided to Defendants. (Tr.42:10-16). For example,

Defendants requested that 270 West End and the architect and rigger that would be conducting

this work provide insurance and indemnity protection to Defendants. (Tr.42:17-43:3). However,

the architect refused to provide any insurance or indemnity protections and the accompanying

rigger refused to provide any indemnity protections. Despite forcing Defendants’ to incur these

substantial engineering and legal fees relating to the proposed façade inspection, 270 West End

abandoned these plans and never moved forward with the inspection. (Tr.43:4-09).

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Fees Incurred In Connection with the Removal and Replacement of the Illegal Sidewalk Shed

By Interim Order dated October 2, 2018, this Court ordered 270 West End to

expeditiously remove and replace the illegal and unsafe Sidewalk Shed. (Tr.47:9-19)(NYSCEF

Doc. No. 120). On December 4, 2018, more than 5 months after 270 West End admitted that the

illegal and unsafe Shed must be replaced, 270 West End’s contractors finally began the work to

replace the Shed. In light of 270 West End’s continuing failure to properly construct and

maintain a code-compliant Shed, and as Defendants had advised the Court, Defendants retained

Thornton Tomasetti to monitor and observe the work of 270 West End’s contractors during the

removal and replacement of the Shed. (Tr.47:20-48:4; 123:3-22). While 270 West End

represented to Defendants and the Court that the removal and replacement of the Shed would

take two days, 270 West End’s contractors required seven days to complete the work. (Tr.124:2-

7). As set forth in their “Field Report,” Thornton Tomasetti identified numerous critical

technical and safety issues during the removal and replacement of the Shed, a number of which

were corrected solely as a consequence of Thornton Tomasetti’s presence at the site. (Tr.56:5-

57:13, 125:3-132:13; Ex. K). In stark contrast, and without explanation, 270 West End’s own

structural engineer, Plan B, who prepared the Replacement Shed plans, was not on site at any

time to observe and direct the removal and replacement work. (Tr.127:6-15).

As set forth in their Field Report, the critical safety, structural, logistical and technical

issues and problems identified by Thornton Tomasetti during the removal and replacement of the

Shed included the following:

• 270 West End’s contractors, working directly above Defendants’ property, were not
using life safety measures or safety harnesses required by OSHA regulations. (Tr.125:3-
25; Ex. K)

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• 270 West End’s contractors improperly attempted to conduct work at night, including the
installation of the largest support beams, without any lighting to illuminate the work site
(Tr. 127:16-128:6; Ex. K).

• Beam spacing, the beam-to-column connections, and the alignment of welded beam
stiffeners the contractors were using for the framing of the structure were not consistent
with the approved plans. (Tr. 128:7-130:11; Ex. K).

• 270 West End’s contractors attempted to use corroded metal kickers to support the
parapet, while the approved plans required timber kickers. (Tr. 131:11-132:3; Ex. K).

• Additional elements of the Replacement Shed that were not in compliance with the DOB
approved drawings including the absence of bridging plates between the largest structural
beams, the use of clamps instead of weld and bolt connections on the support columns,
the absence of welded connections between other structural elements, and the use of non-
conforming material under the Shed columns. (Tr. 129:2-136:12; Ex.K).

As these facts make clear, in the absence of Thornton Tomasetti’s continuous presence at

the site, 270 West End’s contractors would have continued to disregard critical safety

requirements and practices mandated by the DOB. Once, again, Defendants’ professionals lead

the way and insured compliance with safety and legal requirements. Put differently, Defendants

should not have to finance or underwrite Plaintiff’s safety and legal obligations.

As detailed above, and as set forth in the engineering and attorneys’ invoices submitted

into evidence, Defendants incurred engineering fees and costs in the amount of $44,529.05 and

attorneys’ fees and costs in the amount of $63,224.05 between May 2018 and April 8, 2019 all as

a direct result of the pattern of inexcusable delays, negligence, misrepresentations and inaction of

270 West End installation, maintenance, and replacement of the Sidewalk Shed

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ARGUMENT

I. THE PROFESSIONAL FEES AND RELATED COSTS INCURRED BY
DEFENDANTS ARE INDISPUTABLY REASONABLE AND NECESSARY

The specific professional engineering and attorneys’ fees and costs for which Defendants

are entitled to reimbursement from 270 West End are indisputably reasonable. 3

As a general rule, “attorneys’ fees are awarded by determining a presumptively reasonable fee,

reached by multiplying a reasonable hourly rate by the number of reasonably expended hours.”

Bergerson v. New York State Office of Mental Health, 652 F.3d 277, 289 (2d Cir. 2011); see

also, McIntyre v. Manhattan Ford, 176 Misc.2d 325,328, 672 N.Y.S.2d 230,232 (Sup. Ct. New

York Cnty. 1997). Consistent with this general rule, it is well established that a reasonable

hourly rate is “the rate a paying client would be willing to pay.” Arbor Hill Concerned Citizens

Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2007). 4

As the undisputed facts established at the Fee Hearing make clear, the attorneys’ fees

incurred by Defendants since this action was commenced by 270 West End, the services,

including attendance at numerous court appearances and preparing court filings detailing 270

West End’s inaction and negligence, were incurred solely to successfully compel 270 West End

to satisfy its obligations under this Court’ Interim Orders and the New York City Building Code.

270 West End, its engineers, contractors and counsel have consistently demonstrated their

inability to do so, requiring active policing and regular involvement by counsel for Defendants.

As the attorney invoices and corresponding testimony demonstrate, Defendants’

attorneys, Stewart Occhipinti LLP, consistently used the lowest billing attorney where

3
As 270 West End insisted that Defendants file a formal motion, Plaintiff should also be required to reimburse
Defendants for the fees incurred to file the motion that resulted in this referral.
Square Mile Structured Debt LLC v.
Swig, 2013 N.Y. Misc. LEXIS 3346, *12, 2013 NY Slip Op. 31803(U) (Sup. Ct. New York Cnty. 2013).
4
Where, as here, the party seeking a fee award has actually paid the fees, the fee is presumptively reasonable. Sub-
Zero, Inc. v. Sub Zero NY Refrig. & Appl. Services, Inc. 2014 WL 1303434 (S.D.N.Y. Apr. 1, 2014).

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appropriate. (Tr.7:23-9:3; Ex. A). Moreover, the rates charged by the principal attorneys

working on this matter are indisputably reasonable. As established at the Fee Hearing, these

rates are equivalent or comparable to the average prevailing rates charged by similarly

experienced litigators at other comparable law firms practicing in New York City and regularly

paid by clients of Stewart Occhipinti, LLP. (Tr.9:4-14: Ex. A). See also, Nestor v. Britt, 16

Misc. 3d 368 (N.Y. Civ. Ct. 2007) (finding that hourly rates of $520 and $365 for experienced

attorneys in New York County are reasonable). Indeed, during the Fee Hearing, 270 West End

did not offer any evidence to dispute the reasonableness of these rates.

Likewise, the amount of related costs sought by Defendants is also reasonable. These

include fees for postage, messenger and delivery services, duplicating, and electronic research.

These costs are reasonable because they are identifiable “out-of-pocket expenses incurred by

attorneys and ordinarily charged to their clients.” J.S. Nicol, Inc. v. Peking Handicraft, Inc., 2008

WL 4613752, at *18 (S.D.N.Y. Oct. 17, 2008); U.S. Football League v. Nat’l Football League,

887 F.2d 408, 416 (2d Cir. 1989; see also Arbor Hill, 369 F.3d at 97-98 (“If [plaintiff’s counsel]

normally bills its paying clients for the cost of online research services, that expense should be

included in the fee award.”). Like its silence regarding attorneys’ fees, during the Fee Hearing,

270 West End did not offer any evidence to dispute the reasonableness of these related costs.

Finally, the engineering fees incurred by Defendants were similarly reasonable and

necessary. Throughout this matter, Defendants have relied on Thornton Tomasetti, a respected

engineering firm with a long-established presence in New York, to review and comment on

numerous sets of engineering plans and drawings submitted by a series of unreliable

professionals hired by 270 West End. As already noted, based solely on Thornton Tomasetti’s

efforts, it was determined that numerous sets of plans and drawings prepared by 270 West End’s

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professionals to modify and replace the Sidewalk Shed failed to comply with the Building Code

and were otherwise unsafe and unfeasible. Thornton Tomasetti also determined that both the

original Sidewalk Shed and Replacement Shed were not built according to the plans submitted

by 270 West End to DOB. As a result of 270 West End’s history of negligence and inaction in

this matter, Thornton Tomasetti was also required to be present at the site to during the recent

removal and replacement of the Sidewalk Shed to monitor and observe the work being

performed by 270 West End’s contractors. As detailed in the Thornton Tomasetti invoices, Jose

Balbuena, a junior engineer, was at the site throughout the Shed removal and replacement

process. (Tr.124:8-13; Ex. Q). Rahul Ratakonda, a more senior professional, was at the site on a

more limited basis to observe critical aspects of the removal and replacement process and

communicate with 270 West End’s contractors regarding numerous safety violations, improper

construction procedures, and failures to construct the Replacement Shed in accordance with the

plans approved by DOB. (Id.). Having installed and allowed an illegal and unsafe Sidewalk

Shed to remain above and in front of Defendants’ property for almost two years in violation of

the Building Code and the 2017 Interim Order, 270 West End cannot now assert that the

engineering fees incurred by Defendants to review and comment on plans and drawings prepared

by 270 West End’s professionals to modify the Sidewalk Shed and monitor 270 West End’s

removal and replacement of the Shed were somehow either unnecessary or unreasonable.

II. 270 WEST END FAILED TO OFFER ANY CONTRADICTORY EVIDENCE
AT THE FEE HEARING

During the Fee Hearing, Defendants provided extensive witness testimony and submitted

into evidence voluminous supporting documents, including invoices for legal and e

Case Info

Judge

Lori S. Sattler Track Judge’s New Case

Case No.

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Document Filed Date

September 13, 2019

Case Filing Date

January 09, 2017

County

Parties

266 Weave, LLC Defendant
270 West End Tenants Corp. Plaintiff
MCDOWELL, ALAN A Attorney for the Plaintiff
Occhipinti, Frank S Attorney for the Defendant
Occhipinti, Frank S Attorney for the Defendants
SORENSEN, ERIK THOMAS Attorney for the Defendant
SORENSEN, ERIK THOMAS Attorney for the Defendants
Todd Wider Defendant
VALLE, LAUREN ANN Attorney for the Defendants
CHRISTOPHER OSNATO Attorney
DAVID EISEN
FRANK SILVERMAN Attorney
SALLY MAIOLO Attorney

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Motion-Secondary: 270 West End Tenants Corp. v. 266 Weave, Llc, Todd Wider

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Case Info

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