XXX v. LLC DBA TRUCKING AND (2023)

By Short Form Order entered January 4, 2023, this Court granted the unopposed default motion of the plaintiff, The XXX G. Inc.. ["XXX"] [Seq. 001]. In its motion, XXX sought counsel fees, and the January 4, 2023 Order directed XXX to submit proof of fees within 60 days of the Order. XXX complied, and submits an affirmation seeking fees of $1,354.22.

XXX's proof of counsel fees includes an affidavit from XXX's Chief Financial Officer, R.K., in which Mr. K. avers that, inter alia, due to the defendants' default under the terms of the parties' Agreements, the defendants incurred legal fees assessed at 33.33% of the balance owed at the time of the filing of the summons and complaint, which totals $1,354.22. XXX also submits exhibits appended to Mr. K.'s affidavit which consist of the defendants' payment history and proof of funding.

XXX seeks an award of counsel fees that is based solely on the fixed rate set forth in the parties' agreements and which is calculated based on the outstanding balance owed by the defendants. "An award of attorneys' fees pursuant to such a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered". (Kamco Supply Corp. v Annex Contr. Inc., 261 AD2d 363, 365, 689 NYS2d 189 [2d Dept 1999] [citations omitted]). XXX is required to show that the fees sought are warranted on a quantum meruit basis. (Best Bldg. & Supply Lumber Corp. v. Mastercraft Homes and Renovations, Inc., 39 AD3d 788, 790 [2d Dept 2007][citations omitted]). " '[T]he reasonable value of legal services rendered incident to the recovery of a default judgment will not automatically and always be equal to' a particular percentage of the indebtedness being collected". (Best Bldg. & Supply Lumber Corp., 39 AD3d at 790 [quoting Matter of First Natl. Bank of E. Islip v. Brower, 42 NY2d at 474).

As the proof of counsel fees submitted by XXX fails to include any proof or details from which the Court could determine whether the fees sought are warranted on a "quantum meruit basis", the Court must conduct a hearing to assess the reasonableness of fees.

Accordingly, it is hereby,

ORDERED, that there shall be a hearing in this matter to determine whether the counsel fees sought by XXX are warranted on a quantum meruit basis in connection with the work performed in this default judgment action; and it is further,

ORDERED, that such hearing shall take place on May 17, 2023 at 9:15 AM, In-Person; and it is further,

ORDERED, that XXX shall serve the defendants with a copy of this Short Form Order and shall present to the Court proof of service at the time of the above-referenced hearing; and it is further,

ORDERED, that all parties shall appear in-person for the hearing prepared with any witnesses and/or documents intended to be offered as evidence; and it is further,

ORDERED, that the failure to appear in-person for the hearing may be deemed as a waiver of the rights giving rise to such hearing or the right to defend against such hearing.

Dated: April 11, 2023

Mineola, NY

HON. CONRAD D. SINGER, J.S.C.

Conrad D. Singer, J.