Plaintiff also moves under CPLR 3211 (b) to dismiss the 38
affirmative defenses raised in defendant's answer. Most of those affirmative defenses are
addressed—and found lacking—in the discussion above of plaintiff's
request for summary judgment in its favor on the declaratory judgment claim. Any
remaining affirmative defense is subject to dismissal as conclusory and unsupported.
Plaintiff's request for dismissal of the defenses is granted.
III. Whether Plaintiff is Entitled to the Attorney Fees It Claims
In
addition to its claim for declaratory relief, plaintiff seeks an award for attorney fees and
expenses incurred in this action, as provided for by the proprietary lease. (See
NYSCEF No. 39 at 7.) To support its fee application, plaintiff has provided an
attorney affirmation and supporting invoices. In opposing the application, defendant
argues only that awarding fees would be premature because plaintiff has not established
that it should prevail on the underlying claims in the action. (See NYSCEF No.
76 at 24.) Defendant does not, however, challenge the reasonableness of plaintiff's
counsel's hourly rates or hours billed. And, on reviewing the fee invoices, this court is
satisfied that the claimed fees set out in those invoices are reasonable. This court
therefore awards $57,470.50 in fees and $1,904.88 in expenses, for a total of $59.375.38.
This award is without prejudice to plaintiff's seeking a further award for fees incurred
after the filing of plaintiff's opening papers on this motion.[FN5]
Accordingly, it is
ORDERED that the branch of plaintiff's motion seeking summary judgment in its
favor is granted; and it is further
ORDERED, ADJUDGED, and DECLARED that pursuant to the terms of the co-op