Peterkin v Riverbay Corp.

[*1] Peterkin v Riverbay Corp. 2010 NY Slip Op 50733(U) [27 Misc 3d 1214(A)] Decided on April 26, 2010 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2010
Supreme Court, Bronx County

Dejanelle Peterkin, Plaintiff,

against

Riverbay Corporation, SPECIAL POLICE OFFICER CHARLES EDWARDS and SPECIAL POLICE OFFICER ROBERT BERSCH, TAX REG. # 001285, BOTH OF RIVERBAY CORPORATION, Defendants.



22595-2005



For Plaintiff

John DePaola, Esq.

John K. Kouroupas, Esq.

For Defendants

Scott M. Wellikoff, Esq.

Dominic R. Massaro, J.

Plaintiff, a college student at the time, alleged an unlawful arrest by two Co-Op City peace officers, Robert Bersch and Charles Edwards, on December 17, 2004, for which criminal charges were subsequently dismissed. As a result of the incident, she filed a complaint seeking vindication of both federal and state rights in six separate causes of action. These were: (1) excessive force; (2) fear of physical contact; (3) wrongful confinement; (4) negligent employment and supervision of the officers; (5) violation of 42 USC §1983; [FN1] and (6) malicious prosecution. Narrowing the issues, the Court (Brigantti-Hughes, J) dismissed Plaintiff's non-constitutional causes of action and limited her claims to civil assault and excessive force actionable under the Ku Klux Klan Act (42 USC §1983). Following trial, the jury returned a verdict in Plaintiff's favor for $300,000 as compensatory damages and found [*2]Officers Bersch and Edwards jointly and severely liable.[FN2] The jury found Riverbay Corporation liable under a theory of respondeat surperior.[FN3]

Plaintiff was arrested and detained; the criminal charges against her were eventually dismissed; she was awarded a civil jury verdict. Consequently, Plaintiff now demands counsel fees of $152,700 payable to the law firm of Papa, DePaola and Brounstein, Esqs. , expended in vindicating her national citizenship rights. Defendants sought a hearing to clarify the reasonableness of the proposed award, but do not dispute that Peterkin suffered an abuse of her federally protected rights. Defendants had appealed the jury's verdict, but withdrew that appeal on January 5, 2010 (see, Peterkin v. Riverbay Corp., 2010 Slip Op. 60066 [U] [1st Dept. 2010]).

At the counsel fees hearing, Defendants disputed, among other things, that Plaintiff was a "prevailing party" for purposes of a proceeding in vindication of civil rights (see, 42 USC §1988). Likewise, Defendants criticized Plaintiff's fee calculation for using a $400 hourly rate for two lead counsel. Messrs. DePaola and Brounstein, and a lesser rate of $300 hourly for an assisting attorney, John Kouroupas, Esq.[FN4] Additionally, they dispute the proposed fees based upon Plaintiff's counsel limited civil litigation experience and limited resources provided by a smaller sized firm (see generally, Simmons v.

NYC Transit Auth., 2008 US Dist. Lexis 16949 [ED NY 2008]). Finally, Defendants dispute the accuracy of the substantiation submitted.

Discussion

When the Ku Klux Klan Act [FN5] is invoked, a prevailing litigant is entitled to attorney costs incurred in vindicating rights of national citizenship. In this regard, a court may allow a prevailing party, other than the United States, reasonable attorneys' fees, this as part of costs under the fee provisions of the Civil Rights Attorney's Fees Award Act passed in 1976 in reaction to the Supreme Court's decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 US 240 (1975).[FN6] Consistent with congressional [*3]intent in enacting that law, Section 1988(b) thereof facilitates litigation vindicating civil rights that would otherwise be economically unfeasible. The provision is now an integral factor in civil rights litigation.

Section 1988(b) empowers a court, in its discretion, to award reasonable attorneys' fees to a prevailing party in a proceeding pursuant to, inter alia, 42 USC §1983. Section 1983 allows recovery for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" (see, Matter of Hicks v. Schoetz,12 AD3d 1112 [4th Dept. 2004]). There is no dispute Plaintiff suffered a violation of federal constitutional rights (see generally, Maine v. Thiboutot, 448 US 1 [1980]); rather the parties dispute Plaintiff's prevailing party status for purposes of proceeding herein and whether the proposed award is reasonable. Further, the attorneys' fees statute is applicable to state courts (see generally, Bartholomew v. Watson, 665 F.2d 910 [9th Cir. 1981]).

The so called "lodestar" approach for attorney fees purposes has over the years achieved dominance in civil litigation cases (see generally, Gisbrecht v. Barnhart, 535 US 789 [2002]). Although imperfect, it has several important virtues. The method produces an award approximating the fee the prevailing attorney would have received for representing a paying client billed by the hour in a comparable case. It is both readily administrable (see, City of Burlington v. Dague, 505 U S 557 [1992]) and "objective" (see, Hensley v. Eckerhart, 461 U S 424 [1983 ]), thereby permitting meaningful judicial review and producing reasonably predictable results (see, Perdue v. Kenny A., — US —, 2010 US Lexis 3481 [Sup. Ct. 2010]).

Prevailing Party

Initially, the Court finds that Plaintiff is a prevailing party. To be a prevailing party, a civil rights litigant must obtain actual relief on her claim that alters the legal relationship between the parties (see, Sole v. Wyner, 551 US 74 [2007]). The touchstone for a prevailing party inquiry is finding an alteration of the legal relationship between the parties (see, Id.). Here, Plaintiff need not succeed upon all issues to be prevailing; it is enough that she succeed upon any significant issue that achieves some benefit sought in bringing suit. Because Plaintiff obtained a judicially-sanctioned material alteration of the parties' legal relationship upon the merits, which has not been reversed, Plaintiff is a prevailing party (see generally, Kirk v. New York State Dept. of Educ., 2009 U.S. Dist. Lexis 109937 [WD NY 2009]).

Reasonableness

The remaining inquiry is whether Plaintiff's counsel fees are "reasonable." The place to start in assessing the reasonableness of a fee award is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate (see generally, Hensley v. Eckerhart, supra .). In this regard, the proper method to determine attorneys' fees is this lodestar calculation (see, Noghrey v. Town of Brookhaven, 17 Misc 3d 1102A [Sup. Ct. Suffolk 2007]) multiplying the number of hours reasonably expended on litigation times a reasonable hourly rate (see generally, Quaratino v. Tiffany & Co., 166 F3d 422 [2d Cir 1999]).

The attorney fee factors applicable to a court's reasonableness determination include: (1) counsel's time and labor; (2) the litigation's magnitude and complexity; (3) the risk of the litigation; (4) the quality of representation; (5) the requested fee in relation to the verdict; and (6) public policy considerations (see generally, McDaniel v. County of Schenectady, 2010 US App. Lexis 2922 [2nd Cir 2010]). Likewise, under the circumstances, the reasonableness factors must be viewed on the basis of whether the fees are sufficient to induce a capable attorney to undertake representation of a meritorious civil rights case (see generally, Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 US [*4]546 [1986]), but not to provide a form of economic relief to improve the financial lot of attorneys (see generally, Perdue v. Kenny A.,supra ).

As the Court sees it, Plaintiff's pre-trial and trial hourly fees amount to $139, 300.00, based upon a total of 416 hours[FN7] expended by plaintiff attorneys through October 16, 2008 for which bills were submitted (see, Exhibit 3). Plaintiff contends her total attorneys' fees are based upon an hourly rate of $400 for Messrs. DePaola ($56,300) and Brounstein ($2,600) and $300 for Mr. Kouroupas ($80,400). Substantiating this claim, Plaintiff submitted billing statements listing hours and fee for each of three years for legal services provided by the law firm of Papa, DePaola and Brounstein, Esqs.

In response to Plaintiff's proffered substantiation, Defendants submitted fifty nine specific objections including claims that Plaintiff's billing involves clerical tasks, lacks specificity, and is duplicative and excessive (Exhibit F to H). Defendants point out that Plaintiff lost more than 80% of her causes of action before trial and no record exists of certain court conferences that counsel claimed to have attended. Attacking counsel's expertise, Defendants criticize research time spent for a subject in which counsel claims to be expert.

Analysis of Hours

To facilitate analysis, the Court divides Plaintiff's billing as of June 23, 2008, the date of the Court's summary judgment decision dismissing non constitutional causes of action. Prior to that date, Mr. DePaola reported 131.25 hours, that is, three quarters of his time related to the instant litigation. None of Messrs. Brounstein's or Koupuropas's time is allocated to the period before the Court's decision.

Having fully considered the issues and the record, the Court finds in the exercise of its discretion that 20% of the time billed prior to June 23, 2008, and the entire time after that date related to the civil rights causes of action. Therefore, Plaintiff is entitled to 27.25 hours pre-decision senior attorney time and 32 hours post decision senior attorney time for Mr. DePaola, or 59.25 hours. When combined with Mr. Brounstein's post decision billing of 6.25 hours, the senior attorney time equals 65.50 hours.

The next step is to calculate a reasonable hourly charge (see generally, Matter of Rahmey v. Blum, 95 AD2d 294 [2nd Dept. 1983]). As a general proposition, reasonable hourly rates are based upon the customary fee charged for similar services by lawyers in the community with like experience (see. Id.). Defendants argue that Plaintiff's rate is extravagant and counsel as inexperienced (see generally, Pascuiti v. New York Yankees, 108 F. Supp. 2d 258 [SD NY 2000]). Defendants call for a senior attorney hourly rate of no more than $250 and a junior associate rate of $125, especially based upon numerous trial failures by Mr. Kouroupas (see generally, Marisol A. v. Giuliani, 111 F. Supp. 2d 381 [SD NY 2000]).

In response, Plaintiff cites Garcia v. Yonkers School District, 499 F. Supp. 2d 421 (SD NY 2007) as indicative of the rate for medium size firms in this city in civil rights litigation ($425 senior counsel hourly rate). Plaintiff also relies upon Martinez v. Port Authority of New York and New Jersey, a district court case, supporting a $400 hourly rate (see, Martinez v. Port Authority of New York and New Jersey, 2005 WL 214333 [SD NY 2005]). The Court discounts these cases in light of the Second Circuit's reversal of Garcia,[FN8] and distinguishes Sheehan v. Metro. Life Ins. Co., 450 F. Supp. 2d 321 (SD NY 2006), where an experienced ERISA attorney was awarded $425 hourly rate. The Sheehan level of [*5]expertise is not present here. Further, Martinez is distinguished because the fee applicant produced reliable substantiation, a factor not present here (see, Martinez v. Port Authority of New York and New Jersey, supra .).

In support of her fees, Plaintiff relies upon the testimony of Jay Goldberg, Esq. Mr. Goldberg specializes in plaintiff's representation in false arrest and police brutality cases under the Ku Klux Klan Act, including cases against New York City (Tr. pages 11 to 13). Mr. Goldberg said the local hourly civil rights rate ranges between $300 and $500 during the past six years (Tr. pages 14 to 18). Mr. Goldberg emphasized the current rate is $400 hourly for partners and $300 for associates, although he admits he charges $225 to $275 for associate time (Tr. pages 19 to 21).[FN9] In this regard, the witness also agreed that Plaintiff's counsel time spent preparing the summary judgment motion coincided with the time that he would spend on that motion (Tr. pages 35). Likewise, Joseph Carozza, Esq., echoes Mr. Goldberg's testimony, based upon his experience with the attorney disciplinary committee (Tr. pages 45 to 50). Finally, Plaintiff argues that Defendants' failure to produce their counsel's hours and billing prejudiced Plaintiff in proving her case.[FN10]

As stated above, calculation of an award of counsel fees begins with determining a reasonable hourly rate in the "prevailing community," i.e., the county where the court sits (see generally, Lewis Family Farm, Inc. v. Adirondack Park Agency, 2010 NY Slip Op 50180U [Sup Ct. Essex 2010]). Further, a reasonable hourly rate is the rate a paying client would be willing to pay (see, Barnes v. Am. Int'l Life Assur. Co., 2010 US Dist. Lexis 27606 [SD NY 2010]). For purposes of awarding counsel fees, one approach is to calculate the reasonable fee to be awarded based upon the "presumptively reasonable fee" approach adopted in Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182 (2nd Cir. 2008). Using that method, the court sets a "reasonable hourly rate," bearing in mind all case-specific variables, and the court then uses that reasonable hourly rate to calculate the "presumptively reasonable fee" by multiplying the rate by the number of hours reasonably expended (see generally, Porzig v. Dresdner, Kleinwort, Benson, N. America LLC, 497 F.3d 133 (2nd Cir. 2007) ("The presumptively reasonable fee analysis involves determining the reasonable hourly rate for each attorney and the reasonable number of hours expended, and multiplying the two figures together to obtain the presumptively reasonable fee award").

Fee Award

Here, based upon testimony received at hearing, the Court finds a reasonable hourly rate for senior attorneys is $400 and for the junior attorney is $250. Likewise, in determining hours qualifying for reimbursement, the Court considers specific objections[FN11] and Plaintiff's admitted lack of contemporaneous billing prior to September 16, 2008 (see generally, Matter of Rahmey v. Blum, 95 AD2d 294 [2nd Dept. 2006]) in its calculation. On one hand, Plaintiff insists no dispute exists concerning 43.25 hours of Mr. DePaola's billing, 75.25 hours for Mr. Kouroupas' billing, and none concerning Mr. Brounstein's 6.25 hours billing. If true, Plaintiff submits, she is entitled to at least $22,575.00 in counsel fees (sur reply ¶21). However, she feels entitled to more as an enhancement because half her claims [*6]survived for trial (see generally, Northcross v. Bd. of Education, 611 F2d 624 (2nd Cir. 1996]). On the other hand, Defendants argue that the simple fact pattern here does not justify Plaintiff's claims and no justification exists for extravagances such as nearly 65 hours needed for transcript review. Defendants repeat the assertion that 80% of Plaintiff's claims were dismissed before trial. Focusing upon the specific objections, the Court concludes that Plaintiff's fees are adequately discounted for excessive transcript review and duplicate billing by the allocations discussed.

Based upon the above, the Court finds that Plaintiff is entitled to an award under Section 1988(b) in the amount of 65.50 hours multiplied by $400 hourly rate or $26,200.00 for senior counsel and 73.25 hours at a $250.00 hourly rate or $18,312.50 for the junior attorney for a total award of $44,512.50. These amounts are more in line with the verdict amount than the amount of fees Plaintiff originally sought (see generally, McDaniel v. County of Schenectady, supra .). Likewise, the determined amount is fair and reasonable in light of the fact that some entries on counsel's billing records are vague and hours claimed can be viewed in many instances as excessive.

Enhanced Consideration

Concerning Plaintiff's claim for enhanced lodestar due to the contingent nature of her counsel's fee and counsel obtained an extraordinary result following an adverse initial summary judgment ruling, the Court finds that Plaintiff's arguments do not reach the extraordinary standard required by the Supreme Court in Purdue v. Kenny A., supra . Plaintiff fails to convince the Court that it overlooks any specific factor in determining the lodestar amount or that any extraordinary factor was provided by counsel. As Purdue instructs, the circumstances in which superior attorney performance is not adequately taken into account in lodestar calculations are "rare" and "exceptional" (see, Purdue v. Kenny A., supra .) (see also, concurring opinion of Thomas, J.). Enhancements should not be awarded without specific evidence that the "lodestar fee would not have been adequate to attract competent counsel" (see generally, Purdue v. Kenny A., supra ) and that the hourly rate determined does not properly measure counsel's true worth in this litigation (see, Purdue v. Kenny A., supra .). Further. this Court must reject Plaintiff's argument that enhancement is justified because she was in a precarious position because of the earlier summary judgment loss.

The amount of counsel fees found here conforms to the six important rules enunciated in Purdue. Clearly, the amount is sufficient to induce a capable attorney to undertake a meritorious civil rights case and the lodestar amount yields a sufficient fee. Further, no enhancement applies because Plaintiff failed her burden in that she presented no significant evidence of special novelty or skill. Finally, the amount determined is reasonable (see, Purdue v. Kenny A., supra .).

The foregoing constitutes the decision and order of the Court.

SETTLE ORDER.

Dated: Bronx, New York

April 26, 2010___________________________________Hon. Dominic R. Massaro

Justice of the Supreme Court Footnotes

Footnote 1: Plaintiff alleges that Defendants violated rights of national citizenship guaranteed under various provisions of the federal Constitution including (1) freedom from excessive and unreasonable force; (2) freedom from summary punishment; (3) freedom from cruel and unusual punishment; (4) freedom from illegal search and seizure; (5) freedom from malicious prosecution; (6) freedom from false arrest and loss of liberty; (7) freedom from assault; and (8) freedom from battery to her person (Complaint, ¶¶15 to 22) (see generally, Const., Amends. IV, V, VIII, XIII, and XIV).

Footnote 2: For a discussion of the relationship between peace officers and coverage under the Ku Klux Klan Act (42 USC 1983), see generally, Fallon & Meltzer, Article: New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harvard. L. Rev. 1733, at fn. 281 [1991]). For another perspective , see Dittenber, Article: Blackwater and Beyond: Can Potential Plaintiffs Sue Private Security Companies for Due Process Violations via Exceptions to the State Action Doctrine, Including Through Section 1983 Actions?, 33 Nova L. Rev. 629 [2009]).

Footnote 3: Defendant Riverbay Corporations does not qualify for the exemption from respondent superior liability based upon the Supreme Court's decision in Monell v. Dept. of Soc. Servs., 436 US 658 (1978).

Footnote 4: Plaintiff allocates counsel fees between $119, 200.00 for the trial and $33,500.00 for post trial motion practice (sur reply) (Tr. page 133) based upon $400.00 hourly rate for Messrs. DePaola and Brounstein and $300 hourly rate for Mr. Kouroupas. While Plaintiff maintains Defendants do not opposes 43.25 hours for Mr. DiPaola, 75.25 hours for Mr. Kouroupas, and oppose none of Mr. Brounstein's time (6.25 hours) (sur reply ¶¶ 18 and 19), she concedes losing the assault, battery, and malicious prosecution causes of actions (Tr. page 134).

Footnote 5: 42 USC §1983(2010). For a historical discussion of the Ku Klux Klan Act's origin and the Reconstruction Congress' approach to creating a civil rights tort in protection of national citizenship rights, see Note, 40 Fordham L. Rev. 635 [1972]).

Footnote 6: Alyeska Pipeline reaffirmed the "American rule" that each litigant bears responsibility for his/her own attorneys fees absent specific statutory authority to the contrary (see, Alyeska Pipeline Service Co. v. Wilderness Society, supra .). See also, Note: Judicial Discretion and the 1976 Civil Rights Attorney's Fees Awards Act: What Special Circumstances Render an Award Unjust?, 51 Fordham L. Rev. 320 (1982).

Footnote 7: The hours claimed are: Mr. DePaola (140.75 hours); Mr. Brounstein (6.25 hours); and Mr. Kouroupas (269 hours), totaling 416 hours.

Footnote 8: See, Garcia v. Yonkers Sch. Dist., 561 F3d 97 (2nd Cir. 2009).

Footnote 9: On cross, Goldberg admitted that he did not read the transcript or depositions in this case and could not recall reading the opposition papers (Tr. pages 30 to 32).

Footnote 10: Defendants object to producing their hours and billing records upon the ground of relevance. The Court agrees.

Footnote 11: Specific objections also include objections to additional time claimed by Plaintiff in response to the instant section 1988 motion.