Opinion
No. 570530/11.
2012-11-15
MEGAN HOLDING LLC, Petitioner–Landlord v. Julie CONASON and Geoff Bryant, Respondents–Tenants–Respondents, and “John Doe” and “Jane Doe,” Respondents–Undertenants.
Landlord appeals from (1) an order and judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J .), each entered on or about April 8, 2011, after a nonjury trial, which, in a nonpayment summary proceeding, awarded tenants damages in the principal sum of $23,249.00 on their counterclaim for breach of the warranty of habitability; (2) an order and judgment (same court and Judge), each entered on or about July 6, 2011, after a hearing, which awarded tenants attorneys' fees in the principal sum of $53,193.75.
Present SHULMAN, J.P., HUNTER, JR., TORRES, JJ.
PER CURIAM.
Judgment (Jean T. Schneider, J.), entered July 6, 2011, modified to reduce tenants' recovery of attorneys' fees to the principal sum of $44,200.19; as modified, judgment affirmed, without costs. Appeal from order (Jean T. Schneider, J.), entered on or about July 6, 2011, dismissed, without costs, as subsumed in the appeal from the aforesaid judgment. Appeal from order and judgment (Jean T. Schneider, J.), each entered on or about April 8, 2011, dismissed, without costs, as nonappealable.
Landlord's appeal from the April 8, 2011 order and judgment must be dismissed because no appeal lies from an order or judgment entered on the default of the appealing party ( seeCPLR 5511). The default occurred, as essentially conceded by petitioner-landlord, a limited liability company, when it failed to appear at trial by replacement counsel, despite ample opportunity to do so ( seeCPLR 321[c] ), following the grant of its prior attorneys's motion to withdraw ( seeCPLR 321[a]; Michael Reilly Design, Inc. v. Houraney, 40 AD3d 592, 593 [2007];Jimenez v. Brenillee Corp., 48 AD3d 351 [2008] ). Nor can landlord now challenge the order permitting its prior attorney to withdraw since landlord failed to formally oppose the motion ( see M & C Bros., Inc. v. Torum, 75 AD3d 869, 870 [2010];Easton v. Assoc. Leasing, Inc., 24 AD3d 141, 143 [2005] ).
The subsequent award of attorneys's fees to tenants was within reasonable limits and, except for a mathematical error that we now correct, is not disturbed. The trial court was in the best position to determine the factors integral to fixing fees and we perceive no abuse of discretion in the court's determination ( see 542 E. 14th St. LLC v. Lee, 66 AD3d 18, 24–25 [2009];Matter of Connolly v. Chenot, 293 A.D.2d 854, 855 [2002] ).