| Miller Realty Assoc. v Amendola |
| 2008 NY Slip Op 04846 [51 AD3d 987] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Miller Realty Associates, Appellant, v Robert Amendola,Respondent. (Action No. 2.) Miller Realty Associates, Appellant-Respondent, v AmendolaIndustries, Inc., Respondent-Appellant. (Action No. 1.) |
—[*1] Lazer, Aptheker, Rosella & Yedid, P.C., Melville, N.Y. (Russell L. Penzer of counsel), forRobert Amendola and Amendola Industries, Inc. (one brief filed).
In an action, inter alia, to recover damages for breach of a lease (action No. 1), and a separateaction, inter alia, to recover damages for violation of the Navigation Law (action No. 2), MillerRealty Associates, the plaintiff in both actions, appeals, as limited by its brief, from (1) so muchof an order of the Supreme Court, Nassau County (Woodard, J.), dated September 26, 2006, asgranted that branch of the motion of Robert Amendola, the defendant in action No. 2, which wasto dismiss the complaint in that action as barred by the doctrine of res judicata, and (2) so muchof a judgment of the same court entered December 7, 2006, as, after a nonjury trial in action No.1 and upon an order of the same court dated April 6, 2006, granting the motion of AmendolaIndustries, Inc., the defendant in action No. 1, to dismiss the claim for punitive damages, ineffect, dismissed its claim for punitive damages in action No. 1, and Amendola Industries, Inc.,the defendant in action No. 1, cross-appeals, as limited by its brief, from so much of the samejudgment as, upon, inter alia, an order of the same court (Feinman, J.), dated September 17,2004, denying those branches of its motion which were to dismiss the amended complaint inaction No. 1 as time-barred and based upon spoliation of evidence, and upon a decision datedDecember 14, 2005, is in favor of the plaintiff and against it in the total sum of $97,829.90,including an award of an attorney's fee in the principal sum of $53,574.38, with prejudgmentinterest from November 1, 2004.[*2]
Ordered that the order dated September 26, 2006 isaffirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereofawarding the plaintiff prejudgment interest on the attorney's fee award from November 1, 2004and substituting therefor a provision awarding the plaintiff prejudgment interest on the attorney'sfee award from February 26, 2006; as so modified, the judgment is affirmed insofar as appealedand cross-appealed from, without costs or disbursements, and the matter is remitted to theSupreme Court, Nassau County, for the recalculation of prejudgment interest and the entry of anamended judgment thereafter.
The Supreme Court properly determined that action No. 1 was timely commenced pursuantto CPLR 214-c. Regardless of the labels attached to the plaintiff's respective causes of action, areview of the underlying amended complaint reveals that the plaintiff was seeking to recover fordamage to its property caused by the leakage into the soil of a liquid containing volatile organiccompounds from a "dipping tank" which allegedly was buried on the premises by the defendantin action No. 1, Amendola Industries, Inc. (hereinafter Amendola Industries). AmendolaIndustries operated a custom wood fence company on the premises from 1979 through 1999. Thedipping tank and soil contamination were discovered by a subsequent tenant in March 2003while excavating the site. CPLR 214-c provides a three-year statute of limitations for latentinjuries to person or property caused by exposure to harmful substances, beginning on the datethe injury is discovered, or should have been discovered by a reasonably diligent plaintiff,whichever is earlier (see Jensen v General Elec. Co., 82 NY2d 77, 83 [1993]). CPLR214-c applies to actions to recover damages caused by contamination by any substance (see Curry v D'Onofrio, 29 AD3d727 [2006]; Thoma v Town ofSchodack, 6 AD3d 957 [2004]; DiStefano v Nabisco, Inc., 282 AD2d 704[2001]; Christy v Harvey, 262 AD2d 755 [1999]). The plaintiff discovered theunderground tank and contamination in March 2003 and commenced the action in November2003. There is no evidence to suggest, contrary to Amendola Industries' speculation, that theplaintiff knew or should have known of the buried tank or contamination on its property prior to2003 (see Curry v D'Onofrio, 29AD3d 727 [2006]).
In action No. 1, the Supreme Court providently exercised its discretion in declining tosanction the plaintiff for spoliation of evidence, as it was not responsible for the discarding of thedipping tank and contaminated soil by the remediation company hired by its new tenant (seeMcLaughlin v Brouillet, 289 AD2d 461 [2001]). Moreover, Amendola Industries failed tosustain its burden of demonstrating that it would be severely prejudiced by reason of the missingevidence in the presentation of its defense (see Kirschen v Marino, 16 AD3d 555 [2005]).
Contrary to Amendola Industries' contention, the trial court's determination in action No. 1that it was responsible for the contamination of the plaintiff's property was supported by a fairinterpretation of the evidence (see P.T.&L. Contr. Corp. v Trataros Constr., Inc., 29 AD3d 763, 764 [2006]; Ardmar Realty Co. v Building Inspector ofVil. of Tuckahoe, 5 AD3d 517, 518 [2004]).
Case law establishes that where a landlord has a right to recover an attorney's fee pursuant toa lease provision, recoverable fees are those that are reasonable (see Solow Mgt. Corp. v Tanger, 19AD3d 225, 227 [2005]). "In determining what is reasonable compensation for an attorney,the court may consider a number of factors including 'the time spent, the difficulties involved inthe matters in which the services were rendered, the nature of the services, the amount involved,the professional standing of the counsel, and the results obtained' " (Granada Condominium Iv Morris, 225 AD2d 520, 522 [1996], quoting Matter of Potts, 213 App Div 59, 62[1925], affd 241 NY 593 [1925]; see also M. Sobol, Inc. v [*3]Wykagyl Pharm., 282 AD2d 438, 439 [2001]). Thedetermination of a reasonable attorney's fee is generally left to the discretion of the trial court,which is often in the best position to determine those factors integral to the fixing of a reasonablefee (see Clifford v Pierce, 214 AD2d 697, 698 [1995]). We perceive no basis upon whichto disturb the Supreme Court's determination in action No. 1 with respect to a reasonableattorney's fee and recoverable disbursements (see Clifford v Pierce, 214 AD2d 697[1995]). We modify only to the extent of awarding interest on the attorney's fee award fromFebruary 26, 2006, the midpoint date between December 14, 2005 (the date the court determinedthat the plaintiff had prevailed on its claim), and May 12, 2006 (the date that the court awardedthe attorney's fees) (see CPLR 5001 [b]; Solow Mgt. Corp. v Tanger, 19 AD3d 225 [2005]).
The Supreme Court properly found that punitive damages were not appropriate in action No.1 (see New York Univ. v Continental Ins. Co., 87 NY2d 308 [1995]; Kelly v DefoeCorp., 223 AD2d 529 [1996]; Maitrejean v Levon Props. Corp., 87 AD2d 605,605-606 [1982]).
In action No. 2, the Supreme Court properly granted that branch of the motion of RobertAmendola, the defendant in that action, which was to dismiss the complaint. Action No. 2 wasbarred by the doctrine of res judicata as the plaintiff's claims regarding the Navigation Law couldhave been raised in the prior action, action No. 1, which was disposed of on the merits againstAmendola Industries, which was in privity with Robert Amendola (see Matter of Hodes vAxelrod, 70 NY2d 364, 372-373 [1987]; Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]).
Amendola Industries' remaining contention is without merit. Fisher, J.P., Santucci, Balkinand Belen, JJ., concur.