| Yonkers Rib House, Inc. v 1789 Cent. Park Corp. |
| 2009 NY Slip Op 04416 [63 AD3d 726] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Yonkers Rib House, Inc., et al., Respondents, v 1789Central Park Corp. et al., Appellants. |
—[*1] Wasserman Grubin & Rogers, LLP, New York, N.Y. (James Joyce of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of a promissory note, the defendantsappeal from (1) a judgment of the Supreme Court, Westchester County (Loehr, J.), entered July13, 2007, and (2) an amended judgment of the same court entered September 21, 2007, which,after a nonjury trial, is in favor of the plaintiffs and against them in the principal sum of$314,883.84. By decision and order of this Court dated January 13, 2009, the appeals were heldin abeyance and the matter was remitted to the Supreme Court, Westchester County, to set forththe factors considered and the reason for its determination with respect to the award of anattorney's fee (see Yonkers Rib House,Inc. v 1789 Cent. Park Corp., 58 AD3d 618 [2009]). The Supreme Court has now filedits report.
Ordered that the appeal from the judgment entered July 13, 2007 is dismissed, as thejudgment was superseded by the amended judgment entered September 21, 2007; and it isfurther,
Ordered that the amended judgment entered September 21, 2007 is modified by deleting theprovision thereof awarding the plaintiffs an attorney's fee in the sum of $77,841, and substitutingtherefor a provision awarding the plaintiffs an attorney's fee in the sum of $77,838; as somodified, the amended judgment is affirmed; and it is further,[*2]
Ordered that one bill of costs is awarded to the plaintiffs.
The Supreme Court properly determined that the subject promissory note, which called forthe defendants' payment of interest at the maximum rate permissible under New York law fromthe original date of the note until payment in full, was not usurious (see Feldman v KingsHighway Sav. Bank, 278 App Div 589 [1951], affd 303 NY 675 [1951]; cf.Union Estates Co. v Adlon Constr. Co., 221 NY 183, 187 [1917]), and that the defendantsfailed to demonstrate that they made a proper, timely tender of sufficient sums due and owing(see Home Sav. of Am. v Isaacson, 240 AD2d 633 [1997]).
"An award of attorneys' fees pursuant to such a contractual provision may only be enforcedto the extent that the amount is reasonable and warranted for the services actually rendered"(Kamco Supply Corp. v Annex Contr., 261 AD2d 363, 365 [1999]). The defendants didnot challenge the amount of the attorney's fee in the Supreme Court, and, thus, the issue isunpreserved for appellate review (see CPLR 5501 [a]). However, in "recognition of thetraditional authority of the courts to supervise the charging of fees for legal services under thecourts' inherent and statutory power to regulate the practice of law" (SO/Bluestar, LLC v Canarsie Hotel Corp.,33 AD3d 986, 987 [2006], quoting Matter of First Natl. Bank of E. Islip v Brower,42 NY2d 471, 474 [1977]), we previously reached this issue, stated that the plaintiffs wereentitled to an award of an attorney's fee, and remitted the matter to the Supreme Court for thepurpose of setting forth the factors considered in determining the award of an attorney's fee tothe plaintiffs and the reasons therefor (see Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 58 AD3d618 [2009]; see generally Matter ofGamache v Steinhaus, 7 AD3d 525, 527 [2004]; Gutierrez v Direct Mktg. CreditServs., 267 AD2d 427, 427-428 [1999]; Matter of Rahmey v Blum, 95 AD2d 294[1983]). Upon our review of the Supreme Court's order entered February 5, 2009, we find thatthe award of an attorney's fee to the plaintiffs was reasonable and warranted for the servicesactually rendered (see generally Kamco Supply Corp. v Annex Contr., 261 AD2d at365). However, we modify the award to correct the Supreme Court's admitted error incomputation. The amended judgment erroneously awarded the plaintiffs $77,841 as an attorney'sfee instead of $77,838. Accordingly, we modify the amended judgment to reflect the award of anattorney's fee to the plaintiffs in the sum of $77,838 (see CPLR 5019 [a]; see also Utica Mut. Ins. Co. v MagwoodEnters., Inc., 15 AD3d 471, 473 [2005]).
The defendants' remaining contentions are without merit. Fisher, J.P., Balkin, Dickerson andChambers, JJ., concur.