NEW YORK CARDIOTHORACIC SURGEONS v. BREVETTI (2019)

On October 10, 2018, the Court issued a decision and order after a non-jury trial (hereinafter the order). In said order the Court found, inter alia, that defendant/third party plaintiff Gregory R. Brevetti (hereinafter Brevetti) had prevailed in enforcing an employment contract that was breached by New York Cardiothoracic Surgeons, P.C. (hereinafter NYCS) and by Dr. Isreal J. Jacobowitz (hereinafter Jacobowitz). The Court further found that NYCS and Jacobowitz were both liable for Brevetti's unpaid wages in accordance with a contract and with Labor Law Article 6.

The Court further found that in accordance with said contract and Labor Law Article 6, Brevetti was entitled to an award of attorney's fees incurred in the enforcement of the contract for his unpaid wages.

Pursuant to the decision and order issued on October 10, 2018, the issue of Brevetti's claim for attorney's fees was to be handled after the non-jury trial in a separate proceeding. Brevetti was directed to serve counsel for NYCS and Jacobowitz on or before October 24, 2018, with sworn allegations of fact setting forth the attorney fees incurred in defending and prosecuting the instant actions. The Court directed counsel to NYCS and Jacobowitz to serve opposition on Brevetti's counsel on or before November 9, 2018. The parties were then given November 27, 2018 as a return date for further proceedings on the issue.

The parties substantially complied with the submission schedule. Thereafter an evidentiary hearing was conducted. At the evidentiary hearing Brevetti testified. Brevetti also called Anthony J. Genovesi, his current counsel, and Joseph Voyticky and Kenneth Goldberg, his prior counsel, as witnesses.

LAW AND APPLICATION

It is well settled in New York that a prevailing party may not recover attorneys' fees from the losing party except where authorized by statute, agreement or court rule (see Great Neck Terrace Owners Corp. v. McCabe, 101 AD3d 944, 946 [1st Dept 2012] quoting U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 3 NY3d 592, 597 [2004] ). However, the award of attorneys' fees, whether pursuant to agreement or statute, must be reasonable and not excessive (see Miller Realty Assoc. v. Amendola, 51 AD3d 987, 990 [2nd Dept 2008] ). A reasonable attorney's fee is commonly understood to be a fee which represents the reasonable value of the services rendered (see NYCTL 1998—1 Trust v. Oneg Shabbos, Inc., 37 AD3d 789 [2nd Dept 2007] ).

In general, factors to be considered include (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved (see Diaz v. Audi of Am., Inc., 57 AD3d 828 [2nd Dept 2008]; see also Matter of Freeman, 34 NY2d 1, 9 [1974] ).

Moreover, the determination must be based upon a demonstration of the hours reasonably expended on the litigation and what is reasonable compensation for the attorney based upon the prevailing rate for similar work in the community (see Matter of Gamache v. Steinhaus, 7 AD3d 525, 527 [2nd Dept 2004] ). The determination of reasonable attorney's fee is left to the sound discretion of the trial court (see Miller Realty Assoc. v. Amendola, 51 AD3d at 990).

After due consideration of the submissions of the affirmation in support by Brevetti's counsel, the affirmation in opposition by NYCS and Jacobowitz's counsel the reply affirmation of Brevetti's counsel, and after considering the testimony of all witnesses and documentary submission at the evidentiary hearing, the court finds as follows. The attorney fees occurred by Brevetti up to the date of this decision and order in the amount of $ 163,955.00 is reasonable, fair and supported by the evidence.

CONCLUSION

Accordingly, the parties are directed to settle a judgment on or before March 8, 2019, consistent with the courts decision and order of October 10, 2018: (1) awarding a total $ 139,997.30 in damages for breach of contract and failure to pay wages; (2) awarding interest pursuant to CPLR 5001 (a) retroactive to January 22, 2003 and (3) awarding attorney's fees to Gregory R. Brevetti in the amount of $ 163,955.00.

The foregoing constitutes the decision and order of this Court.

Francois A. Rivera, J.