Francis v Atlantic Infiniti, Ltd.

[*1] Francis v Atlantic Infiniti, Ltd. 2012 NY Slip Op 50198(U) Decided on February 7, 2012 Supreme Court, Queens County Lane, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2012
Supreme Court, Queens County

Dolores Francis, Plaintiff,

against

Atlantic Infiniti, Ltd., Defendant.



19953/06



For Plaintiff:

Sadis & Goldberg LLP

by David M. Kasell, Esq.

551 Fifth Avenue, 21st Floor

New York, New York 10176

For Defendant:

Grunwald & Seman, P.C.

by Milton Grunwald, Esq.

100 Garden City Plaza, Suite 203

Garden City, New York 11530

Howard G. Lane, J.

This action arises out of plaintiff's purchase of a used 2003 Infiniti QX4 automobile with 40,894 miles from defendant dealer Atlantic Infiniti, Ltd. for the purchase price of $20,949.00. The vehicle was plagued by mechanical problems which defendant was unable to remedy timely. Plaintiff thereafter retained the law firm of Sadis & Goldberg, LLP ("Sadis") and commenced this action pursuant to, inter alia, section 198-b of the General Business Law (hereafter "the Lemon Law"). After limited pre-trial discovery and before any depositions had taken place, plaintiff moved for summary judgment which was denied in an order dated January 16, 2008. Plaintiff appealed and in an order dated July 28, 2009, the Appellate Division, Second [*2]Department reversed, and granted summary judgment on the issue of liability. Pursuant to section 198-b of the General Business Law, plaintiff then made the instant motion for an award of damages and reasonable attorney's fees, costs, and expenses. In an order dated November 5, 2009, the matter was set down for a hearing on the assessment of damages, including reasonable attorney's fees, costs, and disbursements. On May 18, 2011, the parties appeared by counsel at which time the parties advised the court that the issue of damages had been resolved and that the sole remaining issue to be determined by the court was reasonable attorney's fees, costs, and disbursements.

Plaintiff's counsel submits papers in support of an award of attorney's fees in the amount of $99,505.00. Plaintiff also seeks expenses and statutory costs for the proceeding in the amount of $3,055.60, for a total award of $102,560.60. Defendant does not oppose an award of attorney's fees and costs, but contends that the award demanded by plaintiff should be substantially reduced.

FINDING OF FACTS

In this case, plaintiff was represented by Sadis & Goldberg, LLP, a law firm that specializes in Lemon Law cases. David Kasell, an associate employed at the firm, was initially assigned to the case. He billed 94% or 204.60 hours of the total 227 hours of attorney time on this case at the rate of $410.00 per hour for a total of $83,886.00. Although he graduated from law school in 1995, he did not actually begin the practice of law until 2003. He joined Sadis & Goldberg, LLP in 2006 and at the time he started he knew nothing about Lemon Law litigation. At Sadis, Mr. Kasell was supervised on this case by Francis Bigelow, who graduated from law school in 2002. Mr. Bigelow supervised Mr. Kasell at each and every stage of the proceeding. He billed 19.2 hours at $330.00 for a total of $6,336.00. In addition, two other attorneys collectively billed for a total of $1,353.00. The firm also had two paralegals who collectively billed $7,930.00 at $130.00 for 43 hours of work. Sadis' firm does not employ secretaries. A paralegal drafted the complaint. The pretrial discovery demands for documents was a boilerplate form that was used by the firm in all Lemon Law style cases. There were no depositions held and no experts retained by plaintiff. Sadis billed $2,510.00 for a motion to compel which was never filed with the court. Sadis billed a total of $12,309.00 for a motion for summary judgment (Kasell at $8,692.00 for 21.20 hours). Kasell conceded that in drafting the motion he relied on prior motions and memorandum of law that Sadis prepared in prior cases. After the summary judgment motion, Sadis had billed a total of $26,783.00 for legal fees, while defendant's counsel had billed only $7,800.00.

For the appeal, Sadis billed $60,864.00 of which 126.6 hours [*3]at $410.00 per hour was billed at $51,906.00 for legal work performed by Mr. Kasell. Kasell spent 86.5 hours researching and writing the appeal and a total of 112.9 hours working on the appeal. Defendant's legal fee for the appeal was $12,493.00. Kassel admitted that he was a novice with respect to the appeal. He concedes that a portion of the documents prepared for the appeal was substantially the same as the writings drafted in the trial court motion for summary judgment. Sadis billed $8,227.00 for time expended for legal work for the instant attorney's fees application.

Kassell concedes that a portion of the written documents prepared and drafted for a prior Sadis Lemon Law case were used in this case. In that former case, Sadis requested $88,000.00 in attorney's fees, but was awarded only $26,000.00 at $337.00 per hour. Additional facts are found in plaintiff's and defendant's submissions and in Exhibits admitted into evidence at the hearing.

CONCLUSIONS OF LAW

"Pursuant to General Business Law § 198-b (f)(5), the

court may award reasonable attorney's fees to a prevailing plaintiff' (see Matter of Hynson [American Motors Sales Corp. Chrysler Corp.], 164 AD2d 41, 50 n 3 [1990]). This includes reasonable fees incurred litigating an appeal (see generally Matter of Hynson [American Motors Sales Corp. Chrysler Corp.] 164 AD2d at 50; cf. Deep v Clinton Cent. School Dist., 48 AD3d 1125 [2008]; Podhorecki v Lauer's Furniture Stores, 201 AD2d 947 [1994]). The award of statutory attorney's fees is authorized to ensure that the cost of litigating a Lemon Law cause of action does not outweigh the benefit obtained, and that the remedy provided is meaningful (see Matter of Hynson [American Motors Sales Corp.Chrysler Corp.], 164 AD2d at 50). The statute does not provide any express guidance as to what is to be considered in awarding an attorney's fee. However, a reasonable attorney's fee is commonly understood to be a fee which represents the reasonable value of the services rendered ..." (citations omitted) (Diaz v Audi of Am., Inc., 57 AD3d 828, 829-830 [2d Dept 2008] with due consideration to several subjective factors; see also Padilla v Sansivieri, 31 AD3d 64 [2d Dept 2006])[holding that in determining the reasonableness of a fee, several factors are to be considered other than the time and labor expended, including the skill required in the case, complexity of the matter, the attorney's experience, his ability and reputation, the client's benefit from the services and the fee usually charge by other attorneys for similar services]).

DISCUSSION

1. HOURS REASONABLY EXPENDED AND COUNSEL'S TIME RECORDS [*4]

In assessing attorneys' fees a court "should first ascertain the nature and extent of the services supplied by the attorney from a contemporaneous time sheet indicating the date, number of hours worked, an explanation of how the hours were spent (New York State Assn. for Retarded Children v Carey, 711 F2d 1136; Cohen v West Haven Bd. of Police Comrs., 638 F2d 496), and identifying the specific claim to which the hours pertain (see Hensley v Eckerhart, 461 US ______ , 51 USLW 4552, 4555). Counsel for the prevailing party should exercise billing judgment when submitting a fee request. In the private sector, billing judgment' is an important component in fee setting . . . . . Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority' (Copeland v Marshall, 641 F2d 880, 891). The hours claimed need not be automatically accepted and if inadequately documented, should be disallowed (Hensley v Eckerhart, 461 US _____ , 51 USLW 4552, 4554, supra). The Judge should weigh the hours claimed against his own knowledge, experience and expertise as to the time required to complete similar activities (Johnson v Georgia Highway Express, 488 F2d 714). Hours which reflect duplication of services (see Gagne v Maher, supra, p 345; Bonner v Coughlin, 657 F2d 931, 933-935), or inefficiency (Seigal v Merrick, 619 F2d 160, 164, n 9; Equal Employment Opportunity Comm. v Sage Realty Corp., 521 F Supp 263, 269) or padding, i.e., hours that are excessive or otherwise unnecessary, are to be disallowed (Hensley v Eckerhart, supra, p_____, pp 4554-4555; Copeland v Marshall, supra; Johnson v Georgia Highway Express, supra, p 717)." (Matter of Rahmey v Blum, 95 AD2d 294, 300-301 [2d Dept 1983]). Furthermore, "[i]t is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it" (Johnson v Georgia Highway Express, 488 F2d 714, 717 [5th Cir 1974]). As to legal work, it is appropriate to differentiate between time expended for in-court services and the time expended for out-of-court services (see Northcross v Board of Educ., 611 F2d 624, 638 [6th Cir 1979], cert denied 447 US 911; Miller v Carson, 563 F2d 741,756 [5th Cir 1977]). Hours reasonably spent by counsel in preparing the fee application and in litigating a fee award are also compensable (see Gagne v Maher, 594 F2d 336, 343-344 [2d Cir 1979]; see also Lund v Affleck, 587 F2d 75, 77 [1st Cir 1978]; Johnson v State of Mississippi, 606 F2d 635, 638 [5th Cir 1979]; Northcross v Board of Educ., supra, at 637; Prandini v National Tea Co., 585 F2d 47, [*5]52-54 [3d Cir 1978]). However, if the fee claims are exorbitant or the time devoted to presenting them is unnecessarily high, the Judge may refuse further compensation or grant it sparingly (Gagne v Maher, supra, at 344; Lund v Affleck, supra, at 77).

Defendant argues that the amounts billed by plaintiff's counsel must be reduced because counsel improperly billed for non-legal secretarial work, and that the legal work was excessive or duplicative, unnecessary, unproductive and inefficient.

The court finds that counsel's time records and supporting affirmations are sufficient to determine the hours reasonably expended in litigating this case on behalf of the plaintiff (see generally NY State Ass'n for Retarded Children, Inc. v Carey, 711 F2d 1136, 1147-48 [2d Cir 1983] [holding that an application for attorney's fees must be supported by detailed, contemporaneous time records indicating the attorney who performed the work, the date, the hours expended and the nature of the work done]). In reviewing plaintiff's counsel's submissions, the court finds counsel has sufficiently documented both the number of hours spent on the matter and the nature of the work performed.

DISALLOWED HOURS

The court is not required to accept the attorney's representation of the time expended (Matter of Vitole, 215 AD2d 765 [2d Dept 1995]). A court may determine that some services were unnecessary, unproductive, or duplicative (Desimone v Industrial Bio-Test Laboratories, Inc., 83 FRD 615 [SDNY 1979]). Where time was not reasonably expended, such as when an attorney fails to exercise "billing judgment" or includes time that represents excessive, redundant or otherwise unnecessary tasks, the court may exclude it from the calculation of the lodestar amount.

Sadis concedes that it billed plaintiff $2,510.00 for a motion to compel that was never filed in court. The court finds that such legal work was unproductive. It would not be proper for plaintiff's counsel to bill its client for work on a motion that was not properly filed with the court. As such hours are not properly billed to the client, they are not properly billed to one's adversary under a fee shifting statute. Therefore, the court will disallow the $2,510.00 for the motion to compel which was never filed with the court.

Bigelow made no court appearances, drafted no legal documents and had cursory contact with defendant's counsel. A significant amount of his billed time was devoted to supervising the work of the inexperienced Kasell. The court finds that this time was duplicative of the work performed by Kasell and therefore, his time is reduced to 10 hours.

Paralegals, Michael Crespo and Pat Green, billed 61 hours for paralegal work on this case. Sadis concedes that it employs [*6]no secretaries. Defendant argues that a substantial amount of the billed time was devoted to secretarial work, such as copying, collating, typing, etc. This court finds that some of the work performed by the paralegals was secretarial in nature. This court finds that this time should not have been billed as paralegal time, as it is secretarial in nature. Therefore, the paralegal hours billed by Sadis shall be reduced one half to 30 hours.

Accordingly, the Sadis billable hours are hereby reduced as follows: Bigelow is reduced from 19.2 hours to 10 hours; paralegals are reduced from 61 to 30 hours and 6.60 hours are deducted for the failed motion to compel. Therefore, the court determines that Sadis' billable hours are as follows:

BILLED HOURSALLOWED BILLED HOURS David Kasell204.60-6.60 =198 Francis Bigelow19.20-9.20 = 10 Douglas R. Hirsch0.3 0.3 Christiaan Johnson-Green3 3 Paralegal61.00-31.00 = 30



2. REASONABLE HOURLY RATE

Plaintiff contends that the hourly rates requested are reasonable and consistent with the Laffey Matrix, which is a listing of hourly rates found to be reasonable by the Civil Division of the United States Attorney's Office for the District of Columbia, that is based on the number of years an attorney has been practicing law. Hence, with respect to the attorneys and paralegals who worked on this matter, plaintiff argues that they are entitled to the following hourly fees: $410.00 per hour for attorney David Kasell who has 3 years of experience, $330.00 per hour for attorney Francis Bigelow who was admitted to the New York State Bar in 2002, $410.00 per hour for attorney Douglas R. Hirsch who has admitted to the New York State Bar in 1991, $410.00 per hour for attorney Christiaan Johnson-Green, and $130.00 per hour for paralegals, Michael Crespo and Pat Green.

Interestingly, plaintiff's counsel argues that Kassel who had no experience in Lemon Law litigation has a billable hourly rate of $410.00, while oddly his supervisor Francis Bigelow who had experience in Lemon Law litigation had a lesser hourly billable rate of $330.00 per hour.

In opposition, defendant contends that the hourly rates plaintiff seeks are excessive and not reasonable. As a general rule, the reasonable hourly rate is based on the customary fee [*7]charged for similar services by lawyers in the community with like experience and of comparable reputation to those by whom the prevailing party was represented (Matter of Rahmey v Blum, 95 AD2d 294, 302 [2d Dept 1983] [internal citations omitted]). The burden is on the fee applicant to establish the prevailing hourly rate for the work performed (Gutierrez v Direct Marketing Credit Services, Inc., 267 AD2d 427 [2d Dept 1999] [internal citations omitted]). In addition, the Second Circuit determined that a "reasonable hourly rate is the rate a paying client would be willing to pay" and "a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively" (Arbor Hill Concerned Citizens Neighborhood Ass'n et al. v County of Albany and Albany County Board of Elections, 522 F3d 182, 190 [2d Cir 2007]).

Plaintiff's counsel submits no sworn admissible evidence reflecting the training, background, experience and skill of all the individual attorneys and paralegals who performed work on this action, but does comment on these factors in its Memorandum of Law in Support of the Motion. The court finds that plaintiff's counsel has failed to satisfy its burden of establishing the prevailing hourly rate for legal work performed in Queens County. Counsel merely submits hourly rates based on the Laffey Matrix. However, as one court determined, these rates consist of reasonable hourly rates for civil actions commenced in Federal Court in Washington, D.C. and not a court in Queens County or even the greater New York metropolitan area, which are the only relevant communities the court should be considering to determine a fee award (see DaimlerChrysler Corp v Karman, 5 Misc 3d 567, 569 [Sup Ct, Albany County, 2004]).

Since plaintiff has not met plaintiff's burden of proof on what fees are charged in the Queens County legal community, the court is required to turn to other means and/or case law to guide the court in determining hourly rates that are reasonable in the Queens County market.

Defendant presented some evidence that a reasonable hourly rate in the community for an attorney with over 10 years experience is $300.00 per hour based upon his actual hourly rate and the actual rate billed by Mary Ellen O'Brien, Esq., the attorney who represented defendant on the appeal.

In addition, the court is further guided by case law in the Second Circuit, and in particular the Eastern District of New York with regard to the issue of reasonable attorneys' fees under other fee shifting statutes. Based upon this review of federal cases in the Eastern District of New York, the district courts have found prevailing rates as follows: Luca v County of Nassau, 698 F Supp 2d 296 [EDNY 2010] [The prevailing market rate for attorneys with more than 25 years experience in this area appears to be $350.00 - $400.00 per hour, proposed rate of $325.00 per [*8]hour the "prevailing rate for partners"]; (Olsen v County of Nassau, 2010 US Dist LEXIS 5915, 2010 WL 376642, *4 [EDNY 2010]) ($375.00 - $400.00 per hour for partners found reasonable in case involving Title VII and 1983 claims); Green v City of New York, 2010 US Dist LEXIS 2946, 2010 WL 148128 [EDNY 2010]) ($300.00 per hour for partners in class action); Cruz v Henry Modell & Co., Inc., 2008 US Dist LEXIS 25339, 2008 WL 905351, *10 [EDNY 2008] [$325.00 per hour awarded in connection with claims of intentional discrimination pursuant to 1981, false imprisonment, and negligence]; Melnick v Press, 2009 US Dist LEXIS 77609, 2009 WL 2824586, *9 [EDNY 2009] [current rate in EDNY is $200.00 - $375.00 per hour for partners in a charging lien case)]; (T.S. Haulers, Inc. v Cardinale, et al., 2011 US Dist Lexis 9578 [EDNY 2011] [between two hundred ($200.00) to four hundred dollars ($400.00) for partners; Dupler v Costco Wholesale Corp., 705 F Supp 2d 231, 245 n 10 [EDNY 2010] [finding the prevailing hourly rate for partners in the Eastern District of New York to be $300.00 to $400.00]; Musical Productions, Inc. v Roma's Record Corp., 2009 US Dist LEXIS 87546, 2009 WL 3052630, *10 [EDNY 2009] [finding the prevailing hourly rate for partners in the Eastern District of New York to be $200.00 to $300.00, but recognizing that amount might be outdated and that the actual amount was likely higher]; Wong v Yoo, 2010 WL 4137532, *2 [EDNY 2010] [awarding $375.00 to solo practitioner in civil rights case]; Cruz v Henry Modell & Co., 2008 WL 905351, *10 [EDNY March 31, 2008] [concluding that $325.00 an hour was in line with the prevailing market rate in the Eastern District of New York]; Musical Productions, Inc. v Roma's Record Corp., supra, 2009 US Dist LEXIS 87546, 2009 WL 3052630, *10 [between $100.00 to $250.00 for associates and approximately $100.00 for paralegals]).

In a recent case in the Supreme Court, Nassau County, In the Matter of the Application of Sheila Graves, et al. v Doar, the court found that the hourly rate of $325.00 per hour was reasonable for attorneys with over 25 years experience and $85.00 per hour was reasonable for a paralegal (2010 NY Slip Op 31051U [Sup Ct, Nassau County, April 16, 2010]).

Accordingly, the Court finds that the hourly rate of $300.00 per hour is reasonable for the Queens County community for an experienced attorney of 10 to 15 years; $250.00 per hour for 5 to 10 years; $225.00 per hour for 5 or less years and $85.00 per hour for a paralegal. Therefore, the Court will use these prevailing rates in calculating an award of attorneys' fees.

3. COMPUTATION OF LODESTAR FEE

The next step in calculating an award of attorneys' fees "is to multiply the number of hours reasonably expended on the [*9]litigation by the reasonable hourly rate. The basic fee generated by this computation is known as the lodestar fee. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services" (Matter of Rahmey v Blum, 95 AD2d 294, 303 [2d Dept 1983] [internal citations omitted]).

Here, the product of the hours expended and the reasonable hourly rates is as follows: David Kasell198 hours x $225.00$44,550.00 Francis Bigelow 10 hours x $250.00 2500 Douglas R. Hirsch0.30 hours x $300.0090 Christiaan Johnson-Green 3.0 hours x $300.00900 Paralegal30 hours x $ 85.00 2550 COMBINED TOTAL$50,590.00

4. ADJUSTMENTS TO LODESTAR FEE

"The product of reasonable hours times a reasonable rate does not end the inquiry. As the final step in the computation of a reasonable fee award, the initial estimate, predicated essentially on objective factors, may be augmented or reduced by the courts, to take into account the following subjective factors, first suggested by the United States Court of Appeals for the Fifth Circuit in its oft-cited decision Johnson v Georgia Highway Express (488 F2d 714, supra): (1) the novelty and difficulty of the questions presented; (2) the skill requisite to perform the legal services properly; (3) the preclusion of other employment by the attorney due to acceptance of the case;(4) whether the fee is fixed or contingent; (5) time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the amount involved and the results obtained; (8) the undesirability of the case; and (9) awards in similar cases. It should be noted that many of these factors may have been subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate" (Matter of Rahmey v Blum, supra, at 303-304 [internal citations omitted]).

Furthermore, as the Court noted in Matter of Rahmey v Blum, supra, courts must keep in mind that the purpose of fee shifting statutes "is to attract qualified and competent attorneys without affording any windfall to those who undertake such representation" (Matter of Rahmey v Blum, supra at 305) [internal citations omitted]). [*10]a. WHETHER FEE IS FIXED OR CONTINGENT One factor to be considered is the attorney's risk of litigation. The contingency adjustment is a percentage increase in the lodestar fee to reflect the risk that the lawsuit would be unsuccessful and that no fee at all would be obtained. Although a contingency adjustment may be appropriate in some cases to entice private firms to undertake difficult cases in which victory is uncertain, based upon the evidence or lack of evidence presented in this case, such an adjustment has not been established. In this case, plaintiff's counsel presented no evidence concerning the nature of the fee arrangement between counsel and plaintiff. There was no evidence to show whether the fee arrangement was based upon a fixed hourly rate for legal work performed or contingency fee. Therefore, plaintiff's counsel is not entitled to a percentage increase in the lodestar fee.b. REDUCTION OF FEE

The court finds that a reduction is also warranted because the Sadis firm has significant experience with Lemon Law litigation and so it was able to use writings and memoranda from prior litigation in other similar cases to prosecute this case and on the appeal. This factor was not reflected in Sadis' time record submitted to the court (see DaimlerChrysler Corp. v Karman, 5 Misc 3d 567, 572 [Sup Ct, Albany County, 2004]; citing Hall v American Honda Motor Co., Inc., 1997 WL 732458, 1997 US Dist LEXIS 18544 [EDPA 1997]).

c. AWARDS IN SIMILAR CASES

Other courts have awarded Sadis substantially less attorney's fees than the amounts they have typically demanded to be awarded. In the case of Glassberg v Mercedes-Benz USA LLC, Index No. 105741/08 (Sup Ct, NY County, December 23, 2009), Sadis demanded $88,557.00 and was awarded $26,000.00 ($25,275.00 legal fee plus $725.00 legal expenses) based upon 75 hours at a "blended rate" of $337.00 per hour. In Diaz v Paragon Motors of Woodside, Inc., 2007 WL 2903920 (EDNY October 2007), Sadis demanded $33,639.00 for 149.9 hours of legal work and was awarded $22,900.00 for attorney fees and disbursements based upon an hourly rate range of $375.00 - $425.00 for attorneys and $120.00 for paralegals. In Rebolledo v Horse Power Auto Sales, Inc., EDNY May 29, 2007, 07 CV 0161 (BMC)(RML) on an unopposed submission for an inquest, Sadis demanded and the court awarded attorney's fees and costs in the amount of $10,782.13 based upon $350.00 hourly rate for attorney with more than 10 years experience and $120.00 per hour for paralegal. In the case of Loza v F & D Garet Motors, Inc., Index No. 26542/02, Sup Ct, Queens County, January 16, 2006 (unpublished), Sadis demanded $50,861.89 ($44,820.00 legal fee for 173.20 hours plus $3,000.00 for 25 hours paralegal work) based on an average $250.00 hourly [*11]rate and was awarded $7,500.00 in fees and $201.89 in costs and disbursements.

d. THE AMOUNT INVOLVED AND THE RESULTS OBTAINED

Although the case law is clear that a court may not reduce an attorney's fee award solely because the fee award would be disproportionate to the damages in the underlying case (see Millea v Metro-North R.R. Co., 658 F3d 154 [2d Cir 2011]), in determining a reasonable hourly rate, another factor a court may consider is the degree of success obtained by the prevailing party.

The court notes that although plaintiff's counsel obtained arguably the maximum benefit from the legal services rendered by plaintiff's counsel, i.e., a full refund of the purchase price for a value of $20,949.00, no one can credibly argue that a reasonable, paying client would be willing to pay $102,560.60 for a result valued at $20,949.00 (Keenan v City of Philadelphia, 983 F2d 459 [3d Cir 1992] [The court is not bound by the number of hours worked and may consider the amount of time that was reasonably necessary in light of the services required and results obtained]).

e. EXPERIENCE

In this case, plaintiff seeks in attorney's fees, including, an amount of $26,783.00 for the period from the commencement of the action until approximately the time that plaintiff's motion for summary judgment was denied, $60,864.00 for the time expended in prosecuting the appeal of the summary judgment motion and $8,227.00 for the time expended post appeal including the prosecution and determination of the instant motion for attorney's fees.

An attorney's experience or skill is a factor to be considered by a court in awarding reasonable attorney's fees. For instance, an experienced or skillful attorney might accomplish in a very short time what another inexperienced or lesser skilled attorney could require a much longer time to accomplish (Love v U.S. Fidelity & Guaranty Co., 263 Ark 925, [Sup Ct, Arkansas, 1978]). In this case, the court finds that the fact that Kasell, Sadis' attorney who expended 94% of the attorney time on the case, had limited expertise and experience must be given great weight in considering the amount of time and labor expended. Kasell had practiced law for only three (3) years, with no experience in Lemon Law litigation and was a novice on the appeal. Admittedly, while Kasell demonstrated that he possessed sufficient skills required to effectively litigate this action, the court finds that he did not establish that he needed to spend 204.60 hours. For example, Sadis asserted that it billed $23,802.00 for approximately 58 hours working on this [*12]case from its initial commencement up to the court's order denying plaintiff's motion for summary judgment. This action did not involve any extensive discovery, depositions, expert witnesses or motion practice other than plaintiff's motion for summary judgment and no trial. The case did not raise any novel or complex issues or even ones that required expert proof. In addition, Kasell asserted that he spent 86.5 hours working on the appeal of the trial court's decision denying plaintiff's motion for summary judgment. Courts have held that the prevailing plaintiff under the Lemon Law is entitled to an award of reasonable fees incurred litigating an appeal (Diaz v Audi of America, Inc., 57 AD3d 828 [2d Dept 2008]). However, here that appeal, which was perfected on a 31-page brief and 76 page record, did not involve any novel or complex issues (Id at 831).

Sadis' billing records demonstrate that Kassel was a complete novice in prosecuting the appeal, having spent an inordinate amount of time in performing legal tasks on a relatively simple, routine, and uncomplicated fact pattern. Kassel's labored legal work performance was due in great part by his inexperience. This fact is ironically belied by Sadis' argument that it is an experienced litigation firm specializing in Lemon Law. Had the firm provided Kassel appropriate support, guidance, and supervision, and the full benefit of its so called expertise, skill, and experience, Kassel may not have had to expend the inordinate amount of time he did to complete the legal work he performed.

In addition, Sadis has requested $8,325.00 in fees for legal work performed in connection with the instant fee application. While it is undisputed that as the prevailing party, plaintiff is entitled to a fee award for the legal work performed in a fee request, the request by plaintiff appears excessive under the circumstances of this case (see e.g. Murray v Comm'r of NY Dept of Educ., 354 F Supp 2d 231, 241 [EDNY 2005] [court reduced fee application hours from 150 to 15, while noting that the courts in the Eastern District have awarded 5 to 15 hours for fee applications in routine cases]). As Sadis purports to be a legal firm that specializes in Lemon Law cases and presumably has litigated other fee applications, the court finds that the number of hours expended are excessive and do not reflect a more reasonable number of hours expended by experienced attorneys. Clearly, counsel has the right to fair and just compensation for legal services rendered, but is not entitled to compensation that creates a windfall (Arbor Hill Concerned Citizens Neighborhood Asso. v County of Albany, 522 F3d 182, 193 [2d Cir 2007]).

The court does not discredit that plaintiff's attorney expended the time billed, but finds that the work performed could have been performed in substantially less time and more [*13]efficiently by a more experienced, skilled, and knowledgeable attorney. However, the court declines to reduce these hours specifically, but the court shall reduce plaintiff's fee request by 45% or $22,765.50, and such reduction will compensate for (1) excessiveness, (2) padding, and (3) inefficiency (see Green v City of New York, 403 Fed Appx 626, 630 [2d Cir 2010] [recognized the authority of district courts "to make across-the-board percentage cuts in hours as a practical means of trimming fat from a fee application and noted that no item by item accounting of the disallowed hours is necessary or desirable'"]; Diaz v Paragon Motors of Woodside, Inc., supra. Accordingly, for the legal services rendered by plaintiff's counsel, the court determines that attorney's fee award of $27,824.50 ($50,590 - $22,765.50).

EXPENSES AND COSTS

Prevailing parties are also entitled to recover

reasonable, identifiable out-of-pocket disbursements which are ordinarily charged to clients (see LeBlanc-Sternberg v Fletcher, 143 F3d 748, 763 [2d Cir 1998], quoting U.S. Football League v National Football League, 887 F2d 408, 416 [2d Cir 1989]). Here, plaintiff submitted no documentation to support its demand for $3,055.60 in costs and disbursements. Defendant concedes that $2,536.64 is appropriate, but argues that plaintiff has submitted no proof. The court finds that the plaintiff's submissions support an award of $2,536.64. The court declines to award for those other expenses that are not substantiated by any receipts.

Accordingly, plaintiff's counsel's application for attorney's fees, costs, and expenses is granted to the extent that plaintiff's counsel is awarded $27,824.50 for attorney's fees, plus statutory costs in the amount of $2,536.64 for a total award of $30,361.14, and plaintiff's counsel shall have judgment therefore. Plaintiff's counsel is directed to submit a judgment to the court on notice to defendant within 10 days of the date of this memorandum which sets forth the attorney's fees award plus statutory costs.

A courtesy copy of this memorandum is being mailed to counsel for the respective parties.

.........................

HOWARD G. LANE, J.S.C.