Matter of Caporicci v Berlin

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Matter of Caporicci v Berlin 2012 NY Slip Op 30375(U) February 1, 2012 Sup Ct, Nassau County Docket Number: 002507/11 Judge: Randy Sue Marber Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARDER Justice In the Matter of the Application of IAS PART 14 SUZANNE CAPORICCI Petitioner 3001 and For an Order and Judgment pursuant to Aricles 78 and 86 of the C. L.R. and 42 U. 1983 - against- ELIZABETH R. BERLIN, AS EXECUTIVE DEPUTY COMMISSIONER OF THE OFFICE OF TEMPORAY AND DISABILITY ASSISTANCE OF THE NEW YORK STATE DEPARTMENT OF FAMILY ASSISTANCE, AND RICHARD F. DAINS , AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH Respondents. Papers Submitted: Notice of Motion (Mot. Seq. 02)......... Memorandum ofLaw.......................... Notice of Motion (Mot. Seq. 03)......... Memorandum ofLaw.......................... Affirmation in Opposition................... Reply Affirmation................................ Index No. : 002507/11 Motion Sequence... 02, 03 Motion Date... l1/30/11 [* 2] The Petitioner, Suzanne Caporicci, by way of two separately interposed applications, moves for an award of counsel fees and expenses pursuant to either 42 USC ~1988 or Aricle 86 of the CPLR (Mot. Seq. 02 and Mot. Seq. 03). The motions are determined as hereinafter provided. By way of background , on February 26 2007 , the Petitioner, who was then 34 years of age, suffered a ruptured brain aneurysm and massive stroke, which required that she receive Personal Care Services twenty- four hours per day, seven days per week. On , 2011, the Petitioner commenced the underlying Aricle 78 proceeding, February which sought the following relief: a judgment reversing that portion of a Decision After Fair Hearing, which failed to award Medical Assistance reimbursement, for the period between March 6, 2008 and October 28 2008; an order remanding the within matter to the Respondents, for fuher proceedings to determine the Petitioner s eligibilty for such reimbursement , and: for an award of counsel fees incurred in connection to the commencement of the previously commenced Aricle 78 proceeding. On July 1 2011 , this Court granted the Petition to the limited extent that the matters raised in the Petition were to be remanded to the Respondents to determine the Petitioner s eligibilty for reasonable out-of-pocket Medical Assistance reimbursement, for the period in issue. With respect to the Petitioner s request for an award of counsel fees , this Court denied same in accordance with CPLR ~ 8601 (b). Thereafter, on September 19 , 2011 the Fair Hearing was reopened in accordance with this Court' s directive (see Vollmer [* 3] Affirmation in Support at Exh. 3). Counsel for the Petitioner has now submitted two applications , the first of which seeks $31,010.40 in legal fees and $971. 86 in expenses , incurred in connection to the underlying Aricle 78 proceeding, as well as the interposition of the fee application (Mot. Seq. 02). The second application submitted herein seeks $4 739. 58 in legal fees and $153. in expenses , incured in representing Ms. Caporicci at the Reopened Fair Hearing, as well as the interposition of the supplemental fee application (Mot. Seq. 03).2 With particular respect to the initial fee application , counsel for the Petitioner contends that in unilaterally electing to narrow the time period for which the Petitioner sought reimbursement, the Respondents violated the Petitioner s federal due process rights a cognizable violation under 42 USC ~ 1983, thereby entitlng her to an award of counsel fees under 42 USC ~ 1988 (see Petitioner s Memorandum of Law in Support dated September 8, 2011 , at pp. 3- 8). In the alternative , counsel posits that the Petitioner is entitled to an award of On October 13 2011, a " Decision After Reopened Fair Hearing" was issued in which it was held the (t)he Agency is directed to evaluate the (Petitioner s) eligibilty for reimbursement under Medical Assistance for any reasonable out of pocket bils for personal care services for the period between March 6 , 2008 to October 28 Vollmer Affrmation in Support dated, October 27 2011 , at Exh. 2). The decision went on to state that (t)he Agency is directed to advise the Appellant and her representative in writing of her eligibilty for reimbursement * * *" (id). To date , this Cour has not been informed as to what determination , if any, was made within respect to the issue of Petitioner s reimbursement request. 2008 (see 2 The Cour notes that in the " Reply AffIration in Furher Support of Initial and Supplemental Motion for Attorney s Fees , Costs and Expenses , counsel for the Petitioner has upwardly revised his request to reflect an " additional 16 hours 20 minutes of attorney time to address the Respondents ' arguents to the Petitioner s initial and supplemental fee motions (see Vollmer Reply AffIration at , 71 , 72). The total amount sought by Petitioner s counsel now amounts to $40, 137. 50 in legal fees and $1 125. 61 in expenses. [* 4] counsel fees in accordance with the provisions of the New York State Equal Access to Justice Act, as codified in Aricle 86 of the CPLR (id. at pp. 8- 14). To this point, counsel asserts that Ms. Caporicci is an individual lacking financial resources, who was a prevailng par and who timely interposed a fee application, and accordingly is entitled to relief as at pp. 9- 12). Counsel fuer asserts that as an agency of the afforded by the statute (id. State, THE OFFICE OF TEMPORAY AND DISABILITY ASSISTANCE was a named Respondent and the position adopted thereby was unjustified, the relief herein requested is both waranted and authorized by the statute (id.). In addition to the foregoing, counsel contends that given the complexity ofthe underlying "public entitlement" litigation, as well as his years of experience in this area of law , the fees requested are reasonable and aligned with prevailng market 23, rates (id. 26- 28). Finally, counsel asserts that the requested fees are fully substantiated and detailed by the anexed biling records and avers that he has exercised the necessary "biling judgment" and properly reduced his "raw " time by 20% when ariving at the total amount due (id. at 21 - 26). With respect to the Petitioner specifically posits that " s supplemental fee application, counsel (aJs a result of the Decision After Reopened Fair Hearing, NCDSS must * * * reimburse Ms. Caporicci for the time period from March 8 , 2008 and October 28 2008" , and accordingly the Petitioner has fully prevailed warranting the relief herein requested (see Petitioner s Memorandum of Law dated, October 27, 2011 at p. 7). [* 5] In opposing the Petitioner s initial application , counsel for the Respondents initially argues that inasmuch as this Court previously denied the Petitioner s fee application made in accordance with Aricle 86 of the CPLR, the within application made thereunder should be similarly denied (see Respondents ' Affirmation in Opposition at p. 2). Counsel additionally argues that because this Court has yet to find a violation of the Federal law , any fee request made pursuant to 42 USC ~1988 is premature (id. at pp. 3,4). Counsel stresses that the remand previously ordered by this Court on July 1 , 2011 , in the absence of any concomitant finding of a F ederallaw violation , is an insufficient basis upon which to request legal fees under 42 USC ~ 1988 (id. at pp. 4 5). In addition to the foregoing, counsel posits that while the substantive matters raised in the Petition were indeed remanded for fuher administrative proceedings , until such proceedings have been fully concluded, the Petitioner can not be characterized as a prevailng par as contemplated by 42 USC ~ 1988 (id. at p. 6). The Court initially addresses the viabilty of which are predicated upon 42 USC ~1988. " In the Petitioner s fees requests any action or proceeding to enforce a provision of (sectionJ * * * 1983 * * * of this title, the court, in its discretion may allow the prevailng part, * * * , reasonable attorney s fees as par of the costs * * *" (42 USC ~1988 (bJ). The New York State Court of Appeals has held that " (aJ wide variety of Federal rights 3 The Cour notes that while counsel states that the " application at the appropriate time Affation in Opposition at p. 8). (r)espondent' s , no opposition has been received with respect thereto wil respond to such supplemental (see Respondents' ). [* 6] are encompassed by section 1983 and can, therefore qualify for a discretionar fee award under section 1988" including those " rights secured by the Due Process Clause of the Fifth and Fourteenth Amendments (Thomasel v. Perales 78 N. 2d 561 (1991) at 567). However, while recognizing the availabilty of fees under 42 USC 1988, the Court of Appeals has held that where a court renders a decision and does not predicate same upon a clear Federal basis (Giaquinto , an award of counsel fees thereunder is not appropriate Commissioner of New York State Department of Health, 11 N. Y.3d 179 (2008J). In rendering its prior decision and ordering a remand of the matters raised in the Petition, this Court neither addressed any potential violation of Ms. Caporicci' s rights or employed any Federal statute as a legal basis for its decision and rather confined its analysis as to whether a remand to the Respondents was Thus, the (id. waranted by the record Petitioner herein is not entitled to an award of counsel fees based upon 42 USC ~ 1988 (id.). The Cour now turns to the Petitioner s requests for fees , which are premised upon the New York State Equal Access to Justice Act (hereinafter EAJA). The EAJA provides that " a cour shall award to a prevailng par, other than the state, fees and other expenses incurred by such part in any civil action brought against the state , unless the court finds that the position of the state was substantially justified or that special circumstaces make an award unjust" (New York State Clinical Laboratory Association, Inc. Kalakjian, v. 85 N. Y.2d 346 (1995) quoting CPLR ~ 8601 (aJ). "An award of attorney s fees under the (EAJA) * * * is generally left to the sound discretion of the trial court" (Graves v. Doar [* 7] D.3d 744 (2d Dept. 2011) at 746 (internal citations omittedJ). Within the purview ofthe EAJA , CPLR ~ 8602 (t) defines a "prevailng part" as " a plaintiff or petitioner in the civil action against the state who prevails in whole or in substantial par where such part and the state prevail upon separate issues. " the statute, the Cour of Appeals has held that " In interpreting par has ' prevailed' within the meaning of the State EAJA ifit has succeeded in acquiring a substantial part of the relief sought in the (New York State Clinical Laboratory Association, Inc. lawsuit" supra (1995) , v. at 355). The Court stressed that a part who has 85 N. Kalakjian, 2d 346 prevailed is " a plaintiffwho can show that it succeeded in large or substantial part by identifying the original goals of the litigation and by demonstrating the comparative substantiality of the relief actually obtained" (id. In defining the term " substantially relied upon the definition espoused Underwood (id. at 356). In justified" by the United , the Court of Appeals squarely Pierce States Supreme Court in Pierce the high court interpreted " substantially mean "justified to a degree that could satisfy a reasonable person (Pierce v. justified" to Underwood 487 US 552 (1988) at 565). The ultimate determination as to whether or not the position articulated by the State "was substantially justified is committed to the sound discretion of the court of first instace (Graves v. quoting 193 A. 2d 1009 (3d Dept. 1993) at 1010- 1011). Simpkins v. Riley, Doar 87 A. D.3d 744 (2d Dept. 2011), supra at 747 Further , (t)he burden of establishing substantial justification rests with the State, which must make a strong [* 8] showing to support its position (id.). sub judice, Applying to foregoing principles oflaw to the two fee applications the Court finds that the Petitioner is entitled to the relief herein requested. With particular respect to the initial fee application , this Court finds that the Petitioner is a "prevailng part" (New York State Clinical Laboratory Association, Inc. as contemplated by the EAJA Kalakjian, 85 N. 2d 346 (1995) , supra). Here , as noted above, the Aricle 78 proceeding previously interposed by the Petitioner clearly and unequivocally sought a remand to the Respondents for fuer proceedings to determine her eligibilty for reimbursement for out of pocket medical costs , incurred between March 6, 2008 and October 28 , 2008. This was precisely the relief awarded to the Petitioner by Order ofthis Court dated July 1 , 2011 (id.). Moreover, it its previous decision , this Court expressly held that the determination of the Commissioner s Designee was " arbitrary and capricious " and therefore by implication not substantially justified (id.; Graves Doar 87 A. v. As to the Petitioner D.3d 744 (2d Dept. 2011), supra). s supplemental request for those fees and expenses incurred in connection to the remanded proceeding, the Court of Appeals has held that section 8602(b), allows for an award of fees for administrative proceedings on remand from judicial action (Greerv. Wing, 95 N. 2d676 (2001) at681). Thus , inasmuch as the totality of the relief herein requested is both appropriate and legally authorized , the Court must determine ifthe amount requested is reasonable as contemplated by the statute (CPLR ~ 8602 (bJ). [* 9] The EAJA provides for an award of "reasonable attorney fees , the measure of which " shall be determined pursuant to prevailng market rates " (CPLR ~ 8602 (b); CPLR 8601 (aJ). With respect to those fees which are "reasonable , the United States Supreme Court has held that " (t)he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate 461 US 424 (1983) at433). In so holding, the (Hensleyv. Eckerhart, Court cautioned that " ( c )ounsel for the prevailng par should make a good faith Hensely effort to exclude from a fee request hours unnecessar * * * (id. that are excessive , redundant, or otherwise at 434). As to that which constitutes the prevailng market rate , a Court should look to those fees charged in the relevant legal community, which is the "the judicial district in which the trial court sits Miele v. (Davis v. City of New Rochelle, NY 156 FRD 549 (SDNY 1994); 831 F2d 407 Retirement Fund, New York State Teamsters Conference Pension (2d Cir 1987J). In the instant matter, counsel for the Petitioner has requested fees in the aggregate of$40, 137. 50. In so computing, counsel employed an hourly rate of$325 , which in this Court' s view, is indeed reflective ofthe prevailng market rates in Nassau County generally Luca v. County of Nassau 698 FSupp2d 296 (EDNY 2010); Cruz v. (see Henry Modell & Co., Inc. 2008 WL 905351 (EDNY 2008J). Moreover, having carefully reviewed the [* 10] submissions herein, Petitioner s counsel is clearly possessed of considerable knowledge and experience with respect to the legal matters involved in the underlying litigation. Finally, while the Cour is cognizant that several ofthe Petitioner s submissions are duplicative with respect to the information provided , counsel has already voluntaily reduced his biled hours by 20% (Hensley v. Eckerhart at 434). surpra 461 US 424 (1983), Therefore, based upon the foregoing, the applications interposed by the Petitioner, for an award of counsel fees in the amount of$40, 137. 50 and expenses in the sum of$I, 125. 61, is hereby GRANTED. Submit a Judgment on Notice. This constitutes the Decision and Order of the Court. All application not specifically addressed are DENIED. DATED: Mineola , New York Februar 1 2012 Hon. y Sue Marber, J. ENTERED FEB 06 2012 NASSAU COUNTY COUTY Clllt' . OPFtCE

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