Hirschfeld v Fasal
Annotate this CaseDecided on July 11, 2002
Civil Court, New York County
NEIL B. HIRSCHFELD, Plaintiff,
against
KATIE FASAL, Defendant.
Index No. 03062/02
CYNTHIA KERN, J.
The trial has just been concluded in the matter of Hirschfeld v Fasal. I am now going to make a decision on the record. Plaintiff commenced the present action against the defendant to recover unpaid attorneys' fees. He was initially suing for $10,654.
The Court makes the following findings of facts. Defendant was one of the sponsors of the conversion of a building. She retained three apartments in the building. Defendant came to the plaintiff for legal services because she was having various disputes with the cooperative. She claimed she was entitled to become a director in the cooperative but had not been elected and she also claimed that she was being incorrectly charged for assessments, late charges and repairs. The plaintiff and defendant entered into a retainer agreement dated July 3, 2001. That retainer agreement specifically provided that plaintiff's rate would be $235 an hour and that the associate's rate would be $135 per hour. Thus, it was clear from the retainer agreement itself that an associate would be working on the matter.
Plaintiff then began working for defendant during the months of July and August. He contacted the cooperative to attempt to get additional information. Plaintiff also had a number of telephone calls and meetings with defendant. In addition, plaintiff's associate prepared a memo of law addressing some of the legal issues which arose in this matter. The Court has actually reviewed the memo, which was an exhibit. It is a fairly comprehensive memo addressing the legal issues involved in defendant's dispute with the cooperative. Plaintiff also prepared litigation papers in connection with commencing a lawsuit against the cooperative, although that litigation was not commenced by plaintiff because of a dispute as to the payment of fees.
In September, plaintiff generated his first invoice in the matter and sent it to defendant. The total amount of the invoice was $4,824.50. There was a credit of $500 for the retainer, leaving a balance of $4,324.50.
Defendant had asked for a bill in July of 2001, but plaintiff did not generate a bill until September. Plaintiff's explanation for this was that he was very busy with other matters. There were ongoing discussions with the cooperative and defendant indicated to plaintiff that she wanted stronger steps to be taken. The plaintiff indicated to defendant that research would have [*2]to be done to determine whether litigation was feasible and by the middle of September a memorandum was prepared.
When the invoice was sent to defendant in September, she objected to the form of the invoice in that the time was not clearly broken out in terms of when the time was spent and exactly what was done during the various time periods. In response to defendant's objections to the invoice, plaintiff prepared an itemized bill which was then sent to defendant. Defendant then made another objection to the revised invoice and plaintiff sent out yet another invoice which was a computer printout giving more detail as to the time spent and when it was spent.
During this period, defendant never made any objections to the bill and did not tell plaintiff not to proceed with the case. Defendant wanted plaintiff to commence a lawsuit and plaintiff told her that it would be expensive. Plaintiff was preparing to proceed with the litigation and a meeting was held between plaintiff and plaintiff's associate and defendant.
When defendant received the bill for that meeting, she objected to the fact that the associate's time was billed for the meeting. Well into October, defendant wanted to go forward with the litigation and plaintiff prepared a full set of papers. Defendant came in and signed the papers but plaintiff indicated that he did not want to start the lawsuit until he got some payment from defendant. Plaintiff never commenced the litigation and there were no actual concrete results in terms of coming to any kind of an agreement with the cooperative about the various disputes.
Plaintiff never received any payment from defendant other than the initial retainer. Invoices were broken down and were sent out for the month of July, August, September and October. The total amount of these invoices excluding the $500 for the retainer was $10,959.50. During the course of the testimony, plaintiff conceded that he mistakenly included the consultation fee of $305.50 in the amount billed and agreed that this amount should be deducted from the total amount.
The Court makes the following conclusions of law. Defendant makes a number of arguments as to why she thinks that she should not be required to make any payments to defendant. The Court finds that her arguments that no payment should be made at all are unavailing and without basis. She complains that she was not aware that an associate would be billing for the time spent in meetings with defendant or the time spent conversing with the plaintiff. However, the defendant was clearly aware that an associate would be working on the matter, the retainer provides what the associate rate would be and the bill sent to defendant indicates that the associate was working on the matter. It is customary practice in law firms for an associate to bill for time spent at meetings with the client and time spent talking with the partner. There is nothing improper about this and it is up to the court to determine the reasonableness of the individual charges.
Defendant complained about being charged for the consultation fee. Plaintiff addressed this in his testimony, conceded that he made a mistake and gave defendant credit for the time
spent with respect to the consultation.
Defendant also complained that she should not have to pay the bills because of the way the bills were presented. Her objection was that the first bill was not sent until September even though she requested a bill earlier and that when she did receive the bills, they were not set out in [*3]the customary way that they had been from other law firms. The Court finds that the bills were revised, that they were satisfactory and that they adequately described the charges for the time spent and what time was spent for what items. Moreover, there was no unreasonable delay in the first bill being sent out in September.
It is up to the court to determine what amount of attorney's fees is reasonable in this action for the services rendered. The law is that the determination of reasonableness of attorney's fees is a matter within the discretion of the court. (See McIntyre v Manhattan Ford, Lincoln- Mercury, Inc., 176 Misc2d 325 [NY Sup Ct 1997]). To determine the reasonableness of the attorney's fees, the court ascertains the hours which it determines to have been reasonably expended by the attorney and multiplies it by the reasonable hourly charge for such legal services. This initial computation may then be reduced or increased based upon "[t]he difficulties of issues and the skill required to resolve them, the lawyer's experience, ability and reputation, the time and labor required, the amount involved and benefit resulting to the client from the services, the customary fee considered for similar services, the contingency or certainty of compensation, the result obtained and responsibility involved." (Morgan & Finnegan v Howe Chemical Co., Inc. 210 AD2d 62 [1st Dept 1994]).
Using that formula in the present action, the court finds that a reasonable amount of attorney's fees in this action would be $7,500 with contractual interest from November 1, 2001. Although there was substantial work done in this matter, no litigation was ever commenced and no actual results were achieved in terms of accomplishing anything with the cooperative. This constitutes the decision and order of the court.
3 C E R T I F I C A T E
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5 I, BETH FONTANE-HOWARD, an official court
6 reporter of the State of New York, do hereby certify
7 that the foregoing is a true and accurate transcript
8 of my stenographic notes.
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12 BETH FONTANE-HOWARD
Official Court Reporter.
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Decision Date: July 11, 2002
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