Nestor v Britt

[*1] Nestor v Britt 2009 NY Slip Op 51190(U) [23 Misc 3d 1138(A)] Decided on June 11, 2009 Civil Court Of The City Of New York, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 11, 2009
Civil Court of the City of New York, New York County

Marianne Nestor and Peggy Nestor, Petitioners,

against

Thomas Britt, Respondent.



L & T 68220/06

Gerald Lebovits, J.

In late January 2007, the parties appeared before this court on respondent's motion for attorney fees. After a hearing with testimony and additional papers from the parties, the court, in April 2007, awarded respondent $93,249.88 in attorney fees. (See Nestor v Britt, 16 Misc 3d 368 [Hous Part, Civ Ct, NY County 2007].) Petitioners appealed to the Appellate Term and lost. Respondent now seeks $62,766.82 in attorney fees incurred after this court's April 2007 judgment. Petitioners concede that respondent is the prevailing party and they owe $45,000 in fees. Only the remaining $17,766.82 is at issue. Neither party requested a fee hearing with testimony. Both parties ask this court to resolve all the issues on the papers and oral argument alone.

Respondent is entitled to fees defending unsuccessful appeals and motions relating to the April 2007 judgment. On May 23, 2008, the Appellate Term affirmed this court's April 2007 judgment. (See Nestor v Britt, 19 Misc 3d 142 [A], 2008 NY Slip Op 510462 [U], 2008 WL 2168631 [App Term, 1st Dept 2008 per curiam].) On December 9, 2008, the Appellate Division denied petitioners' motion for leave to appeal. (See Nestor v Britt, 2008 NY Slip Op 91327 [U], 2008 WL 5137202 [1st Dept 2008].) Work completed after the April 2007 judgment includes respondent's efforts concerning his motion for fees and his efforts to collect this court's April 2007 judgment. To collect the judgment, respondent's attorneys dealt with petitioners' bonding company for several months and restrained petitioners' bank accounts. As petitioners agree, attorney fees for these efforts are recoverable. Respondent's attorney fees could and should be reduced for time devoted to unsuccessful claims, but respondent made only successful claims during this time.

The question now is whether the contested $17,766.82 in fees are reasonable. Courts have the discretion to determine what constitutes reasonable attorney fees. This court exercises its discretion by using the lodestar method, multiplying a reasonable billing rate by reasonable [*2]hours counsel spent. (See Solow v Wellner, 150 Misc 2d 642, 652 [Hous Part, Civ Ct, NY County 1995].) In determining what is reasonable, no single factor is dispositive. The court may consider such factors as "the nature of the services rendered, the complexity and novelty of the issues, the attorney's professional reputation and experience, the level of skill involved in handling the case, the result obtained and the going rate in the community for services of this kind performed by attorneys of comparable skills." (Id.)

The history of this case factors into the lodestar calculation. Petitioners have been trying to evict respondent from his rent-stabilized apartment since 1988. (See Nestor, 16 Misc 3d at 369 [giving a history of the parties' protracted litigation].) Throughout these two decades, litigation between the parties has been contentious. Petitioners have, in the past, used frivolous and untruthful efforts to evict respondent, and their prior counsel was sanctioned for misleading a judge. (Nestor, 16 Misc 3d at 377.) Both parties conceded at oral argument that petitioners will likely file yet another holdover proceeding against respondent soon. These facts affect the way the court assesses the reasonableness of the actions of respondent and his counsel.

Counsels' billing rate is reasonable. Respondent's counsel from Cozen O'Conner, lead attorney and firm partner Todd V. Lamb and supervising attorney and senior partner Menachem J. Kastner, increased their billing rates in scheduled intervals on January 1, 2006, and again on January 1, 2008. Considering Lamb and Kastner's experience, reputation, and skill, their respective current rates of $410 and $570 an hour are commensurate with those of other lawyers in New York County handling complex litigation. Petitioners contest Lamb and Kastner's billing rate-increase on the ground that it exceeds the national inflation rate, but an attorney's compensation reflects more than just inflation. In light of Lamb and Kastner's experience, skill, and reputation, they are entitled to raise their rates in excess of the consumer price index. And given the contentious nature of this litigation, it is unsurprising that respondent exercised his right to hire experienced attorneys.

For the most part, counsels' billable hours spent are reasonable. Hours that are excessive, redundant, or otherwise unnecessary must be excluded from a fee request. (Hensley v Eckerhart, 461 US 424, 433-435 [1983].) Lamb explained in his reply affirmation why most of the billed hours between April 23, 2007, and May 28, 2009, are appropriate and necessary. For example, Lamb averred that Kastner's April 26 "conference with Todd Lamb re: restraining order; review same" took .8 hours because restraining petitioners' bank account was a serious matter of litigation strategy. If billing records are vague, a reduction in fees is appropriate. (Bobrow Palumbo Sales, Inc v Broan-Nutone, LLC, 549 F Supp 2d 274, 287 [ED NY 2008].) Petitioners insufficiently argue, however, that respondent's billing records are vague. This court must uphold the legitimacy of billable hours for which respondent's counsel has logical and valid explanations. Nor will this court will inquire further into whether respondent's counsel routinely "rounded up" billable hours, given that Lamb's explanation for the billed time is persuasive. No instances of improper "rounding up" appear here.

The $17,766.82 in question includes all of Kastner's 21.3 billable hours, which correspond to $11,401, and part of Lamb's billable hours, which comprise the remainder. Petitioners contend that Kastner's oversight was duplicative and unnecessary. However, a senior partner's decision [*3]to review a junior partner's work is often necessary or at least recommended depending on the task. As Lamb's supervising attorney, Kastner was entitled to review Lamb's work. Kastner's 21.3 billed hours span a 24-month period. Less than one hour a month, on average, is reasonable to review a junior partner's work in a historically contentious case with complicated issues like this one. The court has the discretion to determine whether any time expended by an additional attorney is reasonable. (See Luciano v Olsten Corp. 109 F3d 111, 117 [2d Cir 1997] [affirming district court's decision to reduce number of compensable hours for unnecessary second counsel at jury selection and trial].) Given the nature of the litigation history, it was reasonable for Kastner to review Lamb's documents and to be present for two hours during the January 2008 Appellate Term argument.

One of Lamb's billing entries is redundant and one is excessive. On April 24, 2007, Lamb billed .5 hours for "Review of Decision on Attorney Fees."(Aff. Lamb, Apr. 6, 2009, Ex. C at 2.) On May 23, 2007, Lamb billed an additional .3 hours to review that decision after it was published in the New York Law Journal. (See Nestor v Britt, NYLJ, May 23, 2007, at 19, col 3; Aff. Lamb, Apr. 6, 2009, Ex. D at 2.) The .3 hours are redundant because Lamb had already read this court's typed decision. Thus, $109.50 should be deducted from the billing fees. In addition, Lamb spent 1.5 hours on May 31 and June 5, 2007, for a "review of Order to Show Cause to vacate the Citibank restraints." (Aff. Lamb, Apr. 6, 2009, Ex. D at 3 & Ex. F at 2.) The order was one-page long. Respondent's counsel did not address these billing entries in the reply affirmation of May 15, 2009. The court deems this time excessive and reduces it by one hour, or $365. The requested $62,766.82 attorney fees are reduced by $474.50, totaling $62,292.32 in attorney fees due.

Under CPLR 5001(a), respondent is entitled to interest for unpaid attorney fees. The court adds nine-percent legal interest to the sum of $62,292.32. An award of attorney fees is "a conditional award or prerogative which does not mature until the underlying action or proceeding has been determined." (119 Fifth Ave Corp. v Berkhout, 135 Misc 2d 773, 774 [Hous Part, Civ Ct, NY County 1987].) The potential for attorney fees interest began on May 23, 2008, when the Appellate Term affirmed this court's April 2007 judgment.

CPLR 5001 (b) provides that "interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date." The intermediate date in the 384 day period between May 23, 2008, and today, June 11, 2009, is December 1, 2008, the 192nd day. To calculate interest, the sum of $62, 292.32 is multiplied by nine percent (0.09) legal interest (CPLR 5004), for a total of $5606.31. The sum of $5606.31 is then multiplied by 192 and divided by 365, the number of days in a year, for an interest total of $2949.07. Accordingly, $2949.07 in interest is added to $62,292.32 in attorney fees, for a total final money judgment in respondent's favor of $65,241.39.

This opinion is the court's decision and order.

Dated: June 11, 2009

J.H.C. [*4]