235 E. 83 Realty, L.L.C. v Fleming
Annotate this CaseDecided on March 3, 2008
Civil Court of the City of New York, New York County
235 E. 83 Realty, L.L.C., Petitioner,
against
Mark Fleming and AKIKO FLEMING, Respondents.
80604/06
Gerald Lebovits, J.
Respondents, Mark and Akiko Fleming, have been rent-stabilized tenants at 235 East 83 Sreet, apartment 4-D, New York, New York, since March 1, 2003. This attorney-fee motion stems from a holdover proceeding in which respondents prevailed at trial. Petitioner alleged that respondents violated the Rent Stabilization Code by permitting and causing excessive noise in their apartment, thus creating a nuisance to their downstairs neighbor. In a written decision dated October 19, 2007, the court dismissed the petition. The court found after a two-day trial and the court's inspection at respondents' apartment and the apartment underneath that the noisy conditions resulted from the post-war building's construction and was not respondents' fault.
The court held a hearing on January 17 and 22, 2008, all digitally recorded. Respondents are entitled to attorney fees. (See RPL § 234.) However, the amount respondents seek, $51,141.11, is unreasonable.
The issue raised at the attorney-fee hearing and in the post-hearing memorandums of law is whether respondents' attorney fees are reasonable. Petitioner disputes various bills. According to petitioner respondents' attorney charged for unrelated matters, unnecessary work, or excessive work.
The court may determine the reasonableness of the attorney fees using the lodestar method, which multiplies counsel's reasonable time by counsel's reasonable hourly rate. (Ross v Congregation B'Nai Abraham Mordechai,12 Misc 3d 559, 566 [Hous Part, Civ Ct, NY County 2006].) To determine what is reasonable, the court considers " the difficulty of the issues and the [*2]skill required to resolve them; the lawyers' experience, ability and reputation; the time and labor required; the amount involved and benefit resulting to the client from the services; the customary fee charged for similar services; the contingency or certainty of compensation; the results obtained and the responsibility involved.'" (Nestor v Britt, 16 Misc 3d 368, 375 [Hous Part, Civ Ct, New York County, 2007], quoting Morgan & Finnegan v Howe Chem. Co., Inc., 210 AD2d 62, 63 [1st Dept 1994, mem].)
Respondents' attorney has been admitted to the bar for 14 years. The court finds his testimony truthful, honest, and credible and concludes that he represented his clients well. His primary area of practice is real estate and landlord-tenant litigation. As of February 2007, his hourly rate was $230.00 an hour. He then increased the hourly rate to $250.00 an hour, and in January 2008, he increased it again to $275 an hour. Considering respondents' attorney's experience and the customary rate for similar services in Manhattan, the court finds his hourly rates reasonable. (See Nestor, 16 Misc 3d at 375-376 [finding that in New York County, attorneys of skill, experience, and good fortune doing work in Civil Court, Housing Part, regularly charge fees that exceed $300 an hour].)
The amount of time respondents' attorney expended during this proceeding is disproportionate and unreasonable, however, and part of the work is duplicative, unnecessary, and excessive.
Respondents' attorney testified that he spent 52.65 hours in the course of 21 days preparing for the trial. This proceeding was a simple holdover claim, and the trial took only two days, on July 27 and August 6, 2007. Although the trial was adjourned four times and there was a gap of five and seven weeks between adjournments, the preparation before each date need not have been made anew. Respondents' attorney was in charge of this case from beginning to end and well recalled the preparation he had already done. No reason existed for him to prepare afresh each time. Therefore, 52.65 hours are unreasonable and will be reduced by two-thirds.
In addition, respondents' attorney-fee award is reduced due to unnecessary work. (See Nestor v Britt, NYLJ, July 2, 1998, at 32, col 1 [App Term 1st Dept, per curiam], affd 270 AD2d 192 [1st Dept 2000, mem].) The charges for the post-trial brief fall into the unnecessary-work category. This court told the lawyers twice very clearly that it neither wanted nor needed a post-trial brief but that if respondents wanted to submit one, they were welcome to do so. Therefore, the 21.5 hours spent by respondents' attorney preparing the brief will be reduced from the total award. If the court were to take into account the time respondents' counsel spent on the brief, it would find 60 percent of it duplicative. Attorney fees may not be recoverable for duplicative work. Respondents in their post-trial brief used several cases and similar language previously used in respondents' Memorandum of Law in Support of Respondents' Motion to dismiss, as well as a deposition excerpt from the non-witness party, Ms. Kate Dobson. Duplicative work occurs when "a firm bills twice for work done once." (Goldman v Rosen, 2005 NY Slip Op 52152[U], *1, 2005 WL 3542398, at *1, 2005 NY Misc LEXIS 2939, at *1 [Hous Part, Civ Ct, NY County, Dec. 22, 2005], mod on other grounds 2007 NY Slip Op 50743[U], *1, 2007 WL 1059111, at *1, [*3]2007 NY Misc LEXIS 2337, at *1 [App Term, 1st Dept 2007, per curiam].)
Attorneys are entitled to obtain fees on fees. (See e.g. Kumble v Windsor Plaza Co., 161 AD2d 259 [1st Dept 1990].) But the time spent on unsuccessful claims shall be reduced. (See Nestor v Britt,NYLJ, July 2, 1998, at 32, col 2, affd 270 AD2d at 193, quoting Hensley v Eckerhart, 461 US 424, 434-435 [1983].) Respondents did not prevail at their attorney-fee hearing. The time spent at the hearing, drafting the attorney-fee motion, preparing for the attorney-fee hearing, drafting the reply to the opposition, and drafting the post-hearing memorandum of law must be deducted. During the hearing, respondents subtracted $7842.60 from their original attorney-fee claim for travel time, unsuccessful motion practice, claims not pursued, mistakes, and a letter from February 15, 2008. These credits alone mean that respondents acknowledged that they were charging too much; thus, petitioner was justified in challenging respondents' fees.
Respondents' discovery motion, deposition of the non-party witness, Ms. Kate Dobson, and all related expenses were unnecessary and shall be deducted. The holdover proceeding concerned the noise from respondents' apartment to their downstairs neighbor's apartment. Ms. Dobson was respondents' next-door neighbor. Her testimony was irrelevant to the proceeding. It created only unnecessary expense and work.
Respondents explained how most of the messenger and Federal Express charges relate to their case. They did not explain how the Federal Express charges of January 16, 2007, for $39.53 and $26.66 relate to this case. The charges will be deducted.
Reductions
Respondents' attorney-fee award is reduced by excluding excessive time spent preparing for trial. According to the billing records, the total amount of time spent by respondents' attorney is 52.6 hours, which shall be reduced by two-thirds. The court deducts 35.1 hours. Because 28 percent of the 52.6 hours was charged at $230 an hour and 72 percent at $250 an hour, between January 24, 2007 and August 5, 2007, the reduction shall be in the same manner. Thus, 9.8 hours, which is 28 percent, shall be reduced at $230 an hour for $2254, and 25.3 hours, which is 72 percent, shall be reduced at $250 an hour for $6325. This amounts to a total reduction of $8579.
The attorney-fee award will also be reduced by unnecessary time spent in the post-trial brief, a total of 21.5 hours at $250 an hour, according to the billing records, for a total amount of $5375.
Respondents' attorney fees are also reduced for time devoted to unsuccessful claims. The work related to the attorney-fee hearing will be subtracted. According to the billing records, 13.1 hours at $250 an hour will be excluded for the time spent drafting the attorney-fee motion for $3275; 9.2 hours at $250 an hour will also be subtracted for the reply to the opposition to the [*4]legal fees for $2300; 21.3 hours will be reduced for the preparation of the attorney-fee hearing including reviewing all the documents, gathering billing and complying with the subpoena, 6.5 hours will be reduced at $250 because it involved work done in 2007, for $1625, and 14.8 hours will be reduced at $275 because it was work done in 2008, for $4070; 4.4 hours for the attorney-fee hearing at $275 an hour for $1210, and 0.2 hours at $275 an hour for the post-hearing memorandum of law for $55. The total amount subtracted is $12,535.
Regarding Ms. Dobson's deposition and related expenses, the following shall be deducted: 7.7 hours spent between October 27 and October 31, 2006, for the non-party witness discovery motion for $1771; 0.20 hours from November 27, 2006, spent coordinating a stenographer for Ms. Dobson's deposition for $46; 0.33 hours from December 4, 2006, spent on a telephone call with Ms. Dobson and a letter for her for $75.9; 2 hours from December 5, 2006, spent preparing for the deposition and the deposition itself of Ms. Dobson for $460; 2 hours from December 29, 2006, for reviewing Ms. Dobson's transcript deposition and preparing the Notice to Sign and Return transcript for $460; 0.70 hours from January 1, 2007, for finalizing the deposition transcript settlement and arranging for service, for $161; 0.70 hours from January 15, 2007 for reviewing the deposition's transcript returned by Ms. Dobson and drafting a letter to her, for $161. The total amount to be deducted for this unnecessary work is $3134.90.
In addition, the Federal Express charges from January 16, 2007, will be deducted: $66.19.
Respondents' attorney fees total $51,141.11. After subtracting $8579 for the trial preparation,
$5375 for the post-trial brief, $12,535 for the attorney-fee hearing and related work, $3134.9 for
Ms. Dobson's deposition and related expenses, and $66.19 for the federal express charges,
respondents' attorney fees total $21,451.02.
Interest
Respondents are entitled to interest for unpaid attorneys fees under CPLR 5001 (a). (Nestor,16 Misc 3d at 380; Matter of Boxley, 218 AD2d 623, 624 [1st Dept 1995, mem], citing Ash & Miller v Freedman, 114 AD2d 823, 823 [1st Dept 1985, mem].) To the sum of $21,451.02, the court adds nine-percent legal interest. The entitlement to interest accrues from October 19, 2007, when respondents prevailed in the holdover proceeding.
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 136-day period between October 19, 2007, and today, March 3, 2008, is December 26, 2007, the 68th day. To calculate the interest, the sum of $21,451.02 is multiplied by 0.09, for a total of $1930.59. The sum of $1930.59 is then multiplied by 68 and divided by 366, the number of days in a leap year such as 2008, for an interest total of $358.69. Accordingly, to $21,451.02 in attorney fees is added $358.69 in interest, for a total final money judgment in respondents' favor of $21,809.71. [*5]
None of the above suggests that respondents' attorney did not put in the time claimed or that he did poor work. To the contrary, the court finds that he did the work he claimed and that he did it well. But petitioner does not have to pay for the extravagantly excessive time devoted to this case.
This opinion is the court's decision and order.
Dated: March 3, 2008
J.H.C.
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