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JONES v. ORANGE HOUS. AUTH.

April 5, 1983

Re: Linda Jones
v.
Orange Housing Authority, et al.



The opinion of the court was delivered by: STERN

 Plaintiff Linda Jones moves for the award of attorneys' fees pursuant to 42 U.S.C. § 1988. The motion will be granted as to defendants Abraham Gnessin and L & A Properties and denied as to defendants Orange Housing Authority and Gerard Lardiere.

 FACTS

 Since December 1, 1981, plaintiff Linda Jones has resided in an apartment leased to her by defendant L & A Properties and defendant Abraham Gnessin. She alleges that from December 1, 1981 to November 30, 1982, she held her tenancy pursuant to an Existing Housing Program Lease under Section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f. Under this arrangement, according to plaintiff, she paid $109.57 of the apartment's total monthly rent of $318.57 to defendants L & A Properties and Gnessin. Defendant Orange Housing Authority ("OHA"), with funds obtained pursuant to an annual contributions contract between it and the United States Department of Housing and Urban Development ("HUD"), provided the other $209.00 per month.

 Plaintiff alleges that on October 5, 1982, defendant Gnessin signed an inspection report approving plaintiff's apartment for continued participation in the Section 8 program. She alleges that on October 7, defendant Gnessin signed an agreement with her stating that she and defendant Gnessin requested defendant Orange Housing Authority to approve renewal of the lease for an additional twelve month period. Plaintiff states, however, that on October 19, 1982 she sent a written complaint to defendant Gnessin regarding a lack of heat in her apartment, with a copy to the Orange Housing Code Enforcement Office, and that defendant Gnessin informed her eight days later that he would not renew her lease under the Section 8 program. On December 7, 1982, defendant Gnessin served plaintiff with a notice to quit, requiring her to move from the apartment by January 31, 1983. The notice stated that plaintiff could rent the apartment as a month-to-month tenant by paying $340.87 per month in rent. Plaintiff states that her monthly income is $639.00 per month, and that she cannot afford this amount.

 On December 7, 1982, plaintiff filed this action contending that the termination of her lease under the Section 8 program without good cause violated the United States Housing Act, 42 U.S.C. § 1437f, and the New Jersey Anti-Eviction Law, N.J.S.A. 2A:18-61.3; that the termination of the lease following her complaints about the lack of heat in her apartment violated the New Jersey Anti-Reprisal Law, N.J.S.A. § 2A:42-10.10; that the termination violated plaintiff's due process and First Amendment rights; and that the termination constituted a breach of contract. Plaintiff sought class certification, an injunction requiring defendants to renew plaintiff's Section 8 lease, and a declaration that defendants terminated plaintiff's lease without good cause and that such termination is unlawful. Plaintiff also sought costs, including attorneys' fees. On the same day, plaintiff moved for a temporary restraining order enjoining the defendants from taking steps to evict plaintiff and ordering defendant OHA to continue making rent subsidy payments to defendant Gnessin pending the outcome of the action. After reviewing the complaint and supporting papers, along with an affidavit by plaintiff's attorney that both defendants had received actual notice of the application, the Court entered the temporary restraining order, providing that defendants could move to dissolve the restraint on one day's notice to all parties, and set the matter down for a preliminary injunction hearing on December 13, 1982.

 On the return date of the preliminary injunction hearing, defendant Gnessin appeared pro se and defendant OHA appeared through counsel. Defendant OHA did not oppose the relief sought; defendant Gnessin, however, while not contesting any of the allegations set forth in the complaint, stated that he would not renew the lease. *fn1" Defendant Gnessin was advised to retain counsel, and the matter was adjourned. On December 22, 1982, prior to the adjourned return date of the preliminary injunction hearing, the Court received a copy of a letter from defendant Gnessin to the OHA, dated December 21, 1982, in which defendant Gnessin stated that he would sign a new lease under the Section 8 program on behalf of plaintiff. Plaintiff's attorney, Nancy Goldhill, Esquire of Essex-Newark Legal Services, was provided with a copy of the letter, and states that the matter was not discussed with her before this action was taken. Aff. of Nancy Goldhill, para. 2. Plaintiff's attorney subsequently notified the Court that plaintiff considered the matter settled, and on January 6, 1983, the Court entered an order dismissing the action due to settlement.

 On January 18, 1983, plaintiff moved to amend the judgment dismissing the case in order to file an application for attorneys' fees. *fn2" On February 4, 1983, plaintiff moved for the award of attorneys' fees in the amount of $3,120.00, this figure representing a total of 48 hours spent at $65 per hour.

 Defendant Gnessin responded to the motion to amend the judgment by stating that the award of fees to plaintiff would be "wrong" and "unjust" since he had settled the matter by signing the lease, even though he felt it was "not the right thing to do," solely because he "did not want to be responsible for any attorney fees for myself, whether I won or lost, or attorney fees for the plaintiff if I lost." Aff. of Abraham Gnessin, paras. 3-4. Defendant Gnessin states that had he "any idea that I would have been liable for any money by settling the case, I would have made other arrangements." Id., P 3. Defendant Gnessin states that he consulted an attorney about the matter, but decided not to obtain counsel because the cost of hiring an attorney was "so prohibitive compared to the matter involved." Id., P 2.

 Plaintiff's attorney responded to defendant Gnessin's affidavit by stating that she had made numerous attempts to resolve the matter with defendant Gnessin before the filing of the complaint, but that defendant Gnessin "was adamant in his refusal to sign a lease and in a very cavalier manner stated that I would have to sue him and he would see me in court." Aff. of Nancy Goldhill, paras. 4-5. Plaintiff's counsel notes that attorneys' fees were requested in the complaint, states that there was no discussion of attorneys' fees prior to the entry of the dismissal of the action, and states that defendant Gnessin rejected her offer to enter into a formal settlement agreement. Id., PP 3, 7-8. On February 28, 1983, defendant Gnessin submitted a letter in opposition to the award of fees which does not contradict any of the statements made by plaintiff's counsel. Instead, defendant Gnessin argues that any award of counsel fees to plaintiff would constitute the unwarranted assessment of punitive damages against him, since plaintiff was represented by a legal services organization and therefore did not incur any legal fees in the matter. Defendant Gnessin also states that the matter could have been resolved in state court rather than federal court.

 Defendant OHA, through its counsel, Joseph C. Cassini, III, Esquire, has responded to the motion for counsel fees by asserting that its position throughout the litigation has been the same as that of the plaintiff: that there was no good cause for defendant Gnessin's refusal to sign a new lease agreement with the plaintiff, and that the lease should be renewed. The OHA's counsel states that he "strongly urged" defendant Gnessin to renew the lease and that he "advised him of the repercussion that would result if he did not do so," but that defendant Gnessin remained "adamant" in his refusal to renew the lease. The OHA also states that it is a federally funded body with limited resources, and that an award of attorneys' fees would place an undue burden on OHA given its budgetary constraints.

 DISCUSSION

 In pertinent part, 42 U.S.C. § 1988 provides that

 
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than ...

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