Gayle v. Harry's Nurses Registry, Inc. et al

Filing 311

ORDER ADOPTING REPORT AND RECOMMENDATIONS ORDER ADOPTING REPORT AND RECOMMENDATIONS. Judge Kuo issued the annexed 310 R&R on February 10, 2023, recommending that the court grant Plaintiffs' motion for attorney's fees and costs in the amou nt of $18,098.61. No party has objected to Judge Kuo's R&R, and the time to do so has passed. See Fed. R. of Civ. P. 72(b)(2). Therefore, the court reviews the R&R for clear error. See Rubinstein & Assocs., PLLC v. Entrepreneur Media, Inc., 554 F. Supp. 3d 506, 510 (E.D.N.Y. 2021). Having found none, the court ADOPTS the R&R in full. So Ordered by Judge Nicholas G. Garaufis on 3/10/2023. (TL)

UNITED STATES DISTRICT COURT
E \STERN DISTRICT OF NEW YORK
CLAUDIA GAYLE, Individually, On Behalf of
All Others Similarly Situated and as a Class
Representative, ALINE ANTENOR, ANNE C.
DEPASQUALE, ANNABEL LLEWELLYNHENRY, EVA MYERS-GRANGER, LINDON
MORRISON, NATALIE RODRIGUEZ,
JACQUELINE WARD, DUPONT BAYAS,
CAROL P. CLUNIE, RAMDEO CHANKAR
SINGH, CHRISTALINE PIERRE, LEMONIA
SMITH, BARBARA TULL, HENRICK LEDAIN,
MERIKA PARIS, EDITH MUKARDI, MARTHA
OGUN JANCE, MERLYN PATTERSON, ALEXANDER GUMBS, SEROJNIE BHOG,
GENEVIEVE BARBOT, CAROLE MOORE,
RAQUEL FRANCIS, MARIE MICHELLE
GERVIL, NADETTE MILLER, PAULETTE MILLER, BENDY PIERRE-JOSEPH, ROSE-MARIE
ZEPHIRIN, SULAIMAN ALI-EL, DEBBIE ANN
BROMFIELD, REBECCA PILE, MARIA GARCIA
SHANDS, ANGELA COLLINS, BRENDA
LEWIS, SOUCIANNE QUERETTE, SUSSAN
AJIBOYE, JANE BURKE HYLTON, WILLIE EVANS, PAULINE GRAY, EVIARNA TOUSSAINT,
GERALDINE JOAZARD, NISEEKAH Y. EVANS,
GETTY ROCOURT, CATHERINE MODESTE,
MARGUERITE L. BHOLA, YOLANDA ROBINSON, KARLIFA SMALL, JOAN-ANN R.
JOHNSON, LENA THOMPSON, MARY A. DAVIS, NATHALIE FRANCOIS, ANTHONY
HEADLAM, DAVID EDWARD LEVY, MAUD
SAMEDI, BERNICE SANKAR, MARLENE HYMAN, LUCILLE HAMILTON, PATRICIA
ROBINSON,
Plaintiffs,

1

ORDER
07-CV-04672 (NGG) (PK)

-againstHARRY'S NURSES REGISTRY, INC., and
HARRY DORVILlER,
Defendants.
NICHOIAS G. GARAUFIS, United States District Judge.
In 2007, Plaintiffs brought suit against Defendants seeking to recover unpaid overtime pay and damages under the Fair Labor
Standards Act. (Compl. (Dkt. 1).) Pending before the court is
Plaintiffs' motion for attorney's fees and costs, which the court
referred to Magistrate Judge Peggy Kuo for a report and recommendation ("R&R"). (Mot. (Dkt. 304); May 9, 2022 Order
Referring Mot.) Judge Kuo issued the annexed R&R on February
10, 2023, recommending that the court grant Plaintiffs' motion
for attorney's fees in the amount of $18,043.00 and an additional
$55.61 in costs. (R&R (Dkt. 310) at 9.)
No party has objected to Judge Kuo's R&R, and the time to do so
has passed. See Fed. R. of Civ. P. 72 (b) (2). Therefore, the court
reviews the R&R for clear error. See Rubinstein & Assocs., PILC v.
Entrepreneur Media, Inc., 554 F. Supp. 3d 506, 510 (E.D.N.Y.
2021). Having found none, the court ADOPTS the R&R in full.

SO ORDERED.
Dated:

Brooklyn, New York
March ID, 2023
s/Nicholas G. Garaufis
NICHOIAS. G. GARAUFIS
United States District Judge

2

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORI<:

X
CLAUDIA GAYLE, Individually, On Behalf of All
Others Similarly Situated and as a Class Representative,
ALINE ANTENOR, ANNE C:. DEPASQUALE,
ANNABEL LLE\,TELLYN-HENRY, EVA !VIYERSGRANGER, LINDON MORRISON, NATALIE
RODRIGUEZ,JACQUELINE WARD, DUPONT
BAYAS, CAROL P. CLUNIE, RAMDEO
CHANKAR SINGH, CHRISTALINE PIERRE,
LEMONL'\ SMITH, BARBARA TULL, HENRICK
LEDAIN, !VIBRIKA PARIS, EDITH MUKARDI,
MARTHA OGUN JANCE, MERLYN PATTERSON,
ALEXANDER GUlvIBS, SEROJNIE BHOG,
GENEVIEVE BARBOT, CAROLE MOORE,
RAQUEL FRANCIS, MARIE MICHELLE GERVIL,
NADETTE MILLER, PAULETTE MILLER,
BENDY PIERRE-JOSEPH, ROSE-MARIE
ZEPHIRIN, SULAIJ'vIAN ALI-EL, DEBBIE ANN
BROMFIELD, REBECCA PILE, MARIA GARCIA
SHANDS, ANGELA COLLINS, BRENDA LEWIS,
SOUCIANNE QUERETIE, SUSSAN AJIBOYE,
JANE BURI<:E H'{LTON, WILLIE EVANS,
PAULINE GRAY, EVL'\RNA TOUSSAINT,
GERALDINEJOAZARD, NISEEKAH Y. EVANS,
GETIY ROCOURT, CATHERINE MODESTE,
!VIARGUERITE L. BHOLA, YOLANDA
ROBINSON, KARLIFA S!VIALL,JOAN-ANN R.
JOHNSON, LENA THOMPSON, !VIARY A. DAVIS,
NATI-L'\LIE FRANCOIS, ANTHONY HEADLAM,
DAVID EDWARD LEVY, lVIAUD SAMEDI,
BERNICE SANKAR, !VIARLENE HYMAN,
LUCILLE HAMILTON, PATRICIA ROBINSON,

REPORT AND
RECOMMENDATION
1:07-cv-04672 (NGG)(PK)

Plaintiffs,
-against-

1-IARRY'S NURSES REGISTRY, INC., and HARRY
DORVILIER,
Defendants.

X
1

Peggy Kuo, United States Magistrate Judge:

Plaintiffs filed a Motion for Attorney's Pees and Costs seeking an order pursuant to 29 U.S.C.

§ 216(6), awarding the fees and costs incurred in defending against Defendants' appeal of this Court's
Order denying Defendants' request to reopen the case.

("Motion," Dkt. 304.) The Honorable

Nicholas G. Garaufis referred the Motion to me for a Report and Recommendation. (May 9, 2022
Order.)

FACTUAL AND PROCEDURAL BACKGROUND
The background of this case, which was brought under the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §§ 201 et seq., is set forth in Ga)'le v. Hany's N11ms Regist,y, 802 F. App'x l (2d Cir.
2020) (citation to summary order), Gayle v. Harry's N111:res Rqgistty, flll:, 594 F. App'x714 (2d Cir. 2014)
(citation to summary _order), and the undersigned's report and recommendation dated July 14, 2020
(Dkt. 279), which was adopted by Judge Garaufis on July 31, 2020, see Gay,/e v. Harry's N11ms Regisfly,
I"':, No. 07-CV-4672 (NGG)(PK), 2020 WL 4381809 (E.D.N.Y. July 31, 2020). I, therefore, present
only the facts relevant to the Motion.
Judgment was entered against Defendants on September 19, 2012 (Dkt. 180), and an amended
judgment was entered on October 22, 2013. (Dkt. 214.) Defendants' appeal was unsuccessful, and
the judgment, as amended, was affirmed on December 8, 2014. Gayle, 594 F. App'x 714. On May 11,
2021, Defendants filed a motion to reopen this case (Dkt. 292), which Judge Garaufis denied, noting
that "[t]his case is not administratively closed, as defense counsel appears to believe, but rather is
closed because the merits have been conclusively litigated to judgment." ("May 13, 2021 Order.")
Defendants appealed the May 13, 2021 Order to the Second Circuit Court of Appeals. (See
Dkts. 294, 296.) Plaintiffs filed a cross motion to dismiss Defendants' appeal, arguing that the Court
of Appeals did not have jurisdiction over the May 13, 2021 Order because it was not a final judgment
and therefore, could not be appealed. (See Ex. 6 to Jonathan A Bernstein Reply Declaration in Further

2

Support of Plaintiffs' Motion ("Bernstein Reply Deel.") at 4, Dkt. 308-3.) Plaintiffs also argued that
because a final judgment was issued in 2012 and amended in 2013, the time to appeal had expired.

(Ir!.) The Court of Appeals requested that Plaintiffs file additional briefing on the effect that United
States v. Yonkm Br!. ofEdlllc, 946 F.2d 180 (2d Cir. 1991) had on whether "a post-judgment order tbat
disposes of all matters then pending before the district court is not an appealablc final decision ...."

(See Ex. 5 to Bernstein Reply Deel. at 2, Dkt. 308-2.) Plaintiffs did so. (See irl)
The Court of Appeals dismissed the appeal on March 16, 2022, agreeing with Plaintiffs that
"[t]o the extent the Appellants seek to challenge the 2012 and/or 2013 judgments, this Court bcks
jurisdiction; the time to file a notice of appeal challenging those judgments has long ago elapsed."
("Mandate" at 1, Dkt 301.) The Appeals Court further found that it did have jurisdiction over the
district court's May 13, 2021 Order, but "dismissed [the appeal] as frivolous." (Id. at 2.) Because
Defendants' attorney George A. Rusk "pursued a frivolous appeal and presented clearly meritless
arguments to this Court," the Court of Appeals referred him to its Grievance Panel. (See id.)
Plaintiffs filed the Motion requesting an award of attorneys' fees and costs related to this
appeal. Briefing on the Motion was filed pursmnt to the Court's bundling rule on May 9, 2022. (See
Jonathan A. Bernstein Declaration in Support of Plaintiffs Motion ("Bernstein Deel."), Dkt. 305;
Affirmation of George A. Rusk Opposing Plaintiffs' Motion ("Rusk Aff."), Dkt. 306; Defendants
Memorandum of Law in Opposition to Plaintiffs Motion ("Def. lvlem. of Law"), Dkt. 307; Plaintiffs'
Reply Memorandum of Law in Further Support of Motion, Din. 309.)

LEGAL STANDARD
"Under the FLSA ... , a prevailing pbintiff is entitled to reasonable attorneys' fees and costs."

Fisher u. SD Prnt. Iiuc, 948 F.3d 593, GOO (2d Cir. 2020) (citing29 U.S.C. § 216(6)). The FLSA provides
that the Court "shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a
reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(6)'.
3

The costs awarded "normally

include □

those reasonable out-of-pocket expenses incurred by the

attorney and which are normally charged fee-paying clients." Fis!Je1; 94HF.3d-at 600 (quoting Reichlllan

v. B011s~gnore, Brignati & ivlazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)). "The fee applicant must
submit adequate documentation supporting the requested attorneys' fees and costs." Id.
Courts use the lodestar analysis to calculate "a presumptively reasonable fee" in FLSA cases.

Gonzalez v. Scalinatel/a, Illi:, 112 F. Supp. 3d 5, 21 (S.D.N.Y. 2015) (citation omitted). The "'lodestar'
is calculated by multiplying the number of hours reasonably billed by ... the appropriate hourly rate."
I,," Notte! Networks Co,p. S«: Litzg., 539 F.3d 129, 132 n.-1 (2d Cir. 2008). Ultimately, "[t]he district

court retains discretion to dctern1ine ... what constitutes a reasonable fee." 1\;[if/eu v. J.\lletro-N. RR.

Co., 658 F.3d 154,166 (2d Cir. 2011) (alteration in original) (quoting LeBlanc-Stemberg

11.

FletchB1; 143

F.3d 748, 758 (2d Cir. 1998)).

DISCUSSION

I.

Whether the FLSA Permits an Award of Attorneys' Fees for Work Done on This Appeal
Under the FLSA, a prevailing plaintiff may receive attorneys' fees and costs incurred while

defending an appeal.

See, e.g., Yo1111g v. Cooper Ca111ero11 Co,p., 586 F.3d 201, 208 (2d Cir. 2009)

(remanding case "to the district court for the proper determination of appellate fees and costs owed"
to the prevailing plaintiff and appellee in FLSA case); Case,ta v. Home LinesAgeiuy, I11<:, 273 F.2d 943,
948 (2d Cir. 1959) (awarding counsel additional fees for services performed on FLSA appeal); Velez v.

Vassallo, 203 F. Supp. 2d 312,315 (S.D.N.Y. 2002) ("[P]revailing plaintiffs in FLSJ\ cases are entitled
to attorneys' fees for prosecuting or defending appeals."); Tran v. Tran, No. 91-CV-6818 (Rl'P), 2002
\'(IL

31108362 (S.D.N.Y. Sept. 23, 2002) (awarding fees for plaintiffs attorneys' work on FLSA and

RICO appeal but reducing fee amount based on time spent on frivolous L!VIRA claim on appeal).
Plaintiffs have already been awarded attorneys' fees for work done in defending prior appeals in this
case. See Gayle, 2020 WL 4381809; (Apr. 15, 2015 Judgment, Dkt. 226).

4

Defendants argue that because the issues on appeal this time did not involve wage or overtime
compensation, the FLSA does not permit an award of fees or costs. (Def. Mem. of Law at 2, 4.)
Defendants cite no caselaw to support this interpretation of the FLSA's fee-shifting provision.
Defendants reference cases that describe "the American Rule" (see Def. Mem. of Law at 3-4), which
provides that the prevailing party bears its own fees and costs. See Castillo Grand, LLC v. Sheraton

Operati,{g Co,p., 719 F.3d 120, 123 (2d Cir. 2013) (citation omitted). However, this rule docs not apply
where a statute explicitly provides that a prevailing pbintiffs attorneys' fees shall be paid by the
defendant, as does the FLSA. See Andmvs v. Ctty o(N. Y, 118 F. Supp. 3d 630, 635 (S.D.N.Y. 2015);
29

u.s.c. § 216(6).
Moreover, courts have awarded attorneys' fees in FLSA appeals that similarly dealt with

procedural issues. See, e.g., Z11bair v. Entech E,(gg, P.C:, 550 F. App'x 59, 60°61 (2d Cir. 2014) (finding
appellees in FLSA case were entitled to attorneys' fees related to appeal of district court's denial of
appellants' motion for extension of time to file a notice of appeal) (citation to summaiy order).
Accordingly, I find that the FLSA permits Plaintiffs to seek attorney's fees and costs incurred
in defending the appeal of the May 13, 2021 Order.
II.

Reasonableness of Fees

A. HoutiyRate
Plaintiffs' counsel Jonathan Bernstein charges a rate of $350 per hour, which this Court
previously found to be reasonable. Gayle, 2020 \\'.IL 438'1809, at *4; see also Calla,i v. Black1nan P!11J11bing

S11ppb,, !11<:, No. 11-CV-3655 (ADS)(AKT), 2020 \'(lI.,2771008, at *9 (E.D.N.Y. May 4, 2020) (finding
that in FLSA cases, the "prevailing rates range from $300 to $400 per hour for experienced attorneys"),

R&R adopted, 2020 WL 2769266 (E.D.N.Y. May 28, 2020); Singh v. A&A 1Warket Plaza, Im:, No. 15CV-7396 (AKT), 2019 \VL 4861882, at *7 (E.D.N.Y. Sept. 30, 2019) ("Prevailing rates for experienced
attorneys in the Eastern District of New York range from approximately $300 to $400 per hour.").
5

Given that Bernstein's qualifications have not changed since this Court's finding that $350 was a
reasonable hourly rate for him in 2020, I find that Bernstein's hourly rate remains reasonable.
Bernstein also seeks rellnbursemcnt for work that he acknowledges should have been done by

a paralegal. Bernstein works at a two-attorney firm and performs his own paralegal work. (Bernstein
Deel.

ii 10

n.1.)

Hours billed by an attorney for tasks that are more appropriately performed by a

paralegal may he billed at a reduced rate. See, e.g., L11ceme Textiles, Inc. v. I-I.CT. Textiles Co., No. 12CV-5456 (Kl'vI\'v)(AJP), 2013 \v'L 174226, at *7 (S.D.N.Y. Jan. 17, 2013) (reducing attorneys' fee
amount for time spent completing administrative tasks), R&R adopted, 2013 \v'L 1234911 (S.D.N.Y.
Mar. 26, 2013); D11ke v. Cnty. ofNm:ra11, No. 97-CV-1495 (JS), 2003 WL 23315463, at *5 (E.D.N.Y.
Apr. 14, 2003) (reducing hourly rate billed by attorneys for tasks that were clerical in nature). For
those hours, Bernstein is seeking a rate of $80 per hour. (Bernstein Deel. ,r 16.) The Court previously
found this rate to be reasonable for paralegal work performed in this case, see G,IJ•le, 2020 \v'L 4381809,
at *2, and I find it reasonable here.

B. Reasonableness ofTime
Plaintiffs seek rein1bursement for the time that Bernstein did legal work on this case between
June 15, 2021 and May 4, 2022: 36.4 hours spent on the appeal, and 14.9 hours spent on the Motion.

(See "Thne Sheet," Ex. 2 to Bernstein Deel., Dkt.··305-2; "Second Tllnc Sheett Ex. 8 to Bernstein
Reply Deel., Dkt. 308-5.) "The court may award a fee for the time spent in preparing and defending
an application for fees." TADCO Co11stl: Co,p. v. D01111it01y A11th. of State ofN. Y., No. 08-CV-0073
(KAl'vl)(MDG), 2016 \v'L 11669712, at *6 (E.D.N.Y. Dec. 21, 2016) (citation omitted); see also Reed v.

A. IV. Lmvm,ce & Co., In<:, 95 E3d 1170, 1184 (2d Cir. 1996) (reversing "the district court's order
denying the plaintiff an award of attorneys' fees for the time incurred in litigating the fee claim").
Based on the descriptions provided, I conclude that the time Bernstein spent on the appeal
and the l'viotion is reasonable and that none of the time for which Plaintiffs are seeking an award at

6

the attorney rate was spent on tasks that should have been handled by a paralegal. Accordingly, I
respectfully recommend that Plaintiffs be awarded attorneys' fees for the 51.3 hours Bernstein worked
on this appeal and the Motion at the rate of $350 per hour, a total of $17,955.00.
Plaintiffs also request an award at the paralegal rate for 1.10 hours that Bernstein spent doing
administrative work, i.e., reviewing Federal Rules of Appellate Procedure and local motion rules,

preparing and filing motion papers, and electronically filing Plaintiffs' Reply. (Time Sheet at 5, 6.)
These are appropriate tasks for a paralegal to perform and a reasonable amount of time was spent on
them. See, e.g., O,iska Ins. Co.

!!.

Ismel Di.-c. BaNk of'N.Y, No. 17-CV-00910 (MAD)(T\'v'D), 2019 WL

2929190, at *6 (N.D.N.Y. July 8, 2019) (reducing attorneys' fees for tasks that could have been
performed by a junior associate or paralegal, including review of local court and statutory rules and
arrangement of service and filing); Bmile

/!.

Allied Intmtale, Inc., No. 12-CV-916 (LAP)(DF), 2013 \'(7L

795649, at *10 (S.D.N.Y. Jan. 30, 2013) (finding that revising documents and e-filing are compensable
paralegal tasks), R&R adopted, 2013 \VL 829'189 (S.D.N.Y. 1far. 4, 2013). Accordingly, I respectfully
recommend that Plaintiffs be awarded fees at the paralegal rate of $80 per hour for 1.10 hours of
work, a total of $88.00.

C. Whether Plaintiffs' Attorney's Fees Should be Reduced
\Vhile "there is a "'strong presutnption" that the lodestar figure represents the "reasonable"
fee,' other considerations may lead to an upward or downward departure from the lodestar." Gra11t v.

klmtiNeZ, 973 F.2d 96, 101 (2d Cir. 1992) (quoting City ojBJJrlilzgto11 v. Dag11e, 505 U.S. 557,562 (1992)).
The party rec1uesting a departure "bears the burden of establishing that an adjustment is necessary to
the calculation of a reasonable fee." Id. (citation omitted).
Defendants argue that Bernstein's fees should be reduced "to a de 11Ji//i11ms [sic]" because the
Second Circuit Court of Appeals rejected the jurisdictional arguments that Plaintiffs made on appeal.
(Def. Mem. of Law at 4-5.)

7

A district court has authority to reduce the fees awarded to a prevailing plaintiff due to the
plaintiffs partial or limited success. DallCJ' v. M,Gi11/ey, 141 F.Supp. 3d 231;239-40 (S.D.N.Y. 2015);

see, e.g., Soomojballie v. Po,t A11th. o(N. Y. & N.]., No. 15-CV-1230 (\'v'FK)(PK), 2021 WL 1827116, at
*4 (E.D.N.Y. May 7, 2021) (affirming reduction of plaintiffs attorneys' fees by 10% where plaintiff
ultimately prevailed on appeal but defendants succeeded on certain of the grounds on which they
appealed). A "fee award should not be reduced," however, "simply because the plaintiff failed to
prevail on eve1y contention raised .... Litigants in good faith may raise alternative legal grounds for
a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient

reason for reducing a fee. The result is what matters." /-le11sley v. Eckerhmt, 461 U.S. 424, 435 (1983).
While the Court of Appeals did not adopt Plaintiffs' jurisdictional arguments as to the May
13, 2021 Order, it did find that it lacked jurisdiction as to the 2012 and/ or 2013 judgments, an issue
Plaintiffs also raised in their briefs. (See Ex. 6 to Bernstein Reply Deel. at 4.) The Court's rejection of
one of Plaintiffs' legal bases for their motion to dismiss the appeal is not grounds for reducing
Plaintiffs' attorney's fees where Plaintiffs ultimately prevailed. See HN1sley, 461 U.S. at 435. Unlike in

Sooroojballie, Plaintiffs obtained all the relief that they sought, i.e., the appeal was dismissed. Indeed,
the appellate court found that Defendants' appeal was "frivolous" and potentially sanctionable.
I, therefore, decline to reduce Plaintiffs' counsel's fees based on the Court of Appeals'
rejection of some of Plaintiffs' argmnents.

1

1 I also find no merit to Defendants' other arguments challenging Plaintiffs' request for an award of
fees. Defendants argue that Plaintiff Claudia Gayle did not consent to be part of the action, as required under

the FLSA. (Def. Mem. of Law at 3.) I find, however, that Plaintiff Gayle's affidavit dated August 8, 2008 (.,,e
Dkt. 33; Ex. 4 to Bernstein Reply Deel., Dkt.- 308-1) is sufficient to constitute her consent to be part of the
collective action. See Ale11dezv. Radec Co,p., 260 F.Itb. 38, 52 (\VD.N.Y. 2009) (finding named plaintiffs signed
affirmation, filed in support of the plaintiffs' first motion for class certification, was sufficient to satisfy the
consent requirement of 2\) ll.S.C. § 216(b)).
Attorney Rusk makes several statements in his Affirmation, seemingly to justify a denial or reduction of

fees. (See, e.g., Rusk Aff. 1[ 15 (contending that "the legal fees incurred by Plaintiffs' counsel were the result of
a situation of its own making" when Plaintiffs failed to timely file the Satisfaction of Judgment, thus prompting
Defendants' appeal); ,r 16c (arguing that Plaintiffs' counsel's hours spent reviewing Defendants' 95-page brief
8

D. Costs
Plaintiffs seek $55.61 in reimbursement for copying, PACER, and filing fees. ("Costs," Dkt.
305-3.) Defendants do not contest these costs, and I find them reasonable. See, e.g., G.B. ex nl. N.B.

v. T11xedo U11io11 Fm Sd,. Dist., 894 F. Supp. 2d 415, 443 (S.D.N.Y. 2012); Ethelbe11h v. Choice S"' Ca.,
No. 12-CV-4856 (PKC)(VTvlS), 2016 WL 11469536, at *14 (E.D.N.Y. Aug. 5, 2016), R&R adopted,
Aug. 23, 2016.

CONCLUSION
Based on the foregoing, I respectfully recommend that the Court grant Plaintiffs' Motion and
approve Plaintiffs' request for an award of attorney's fees in the amount of $18,043.00 and costs in
the amount of $55.61.
Any written objections to this Report and Recommendation must be filed within 14 days of
service of this report. See 28 U.S.C. § 636(6)(1 ); Fed. R. Civ. P. 72(6). Failure to file objections within
the specified time waives the right to appeal any order or judgment entered based on this Report and
Recommendation. Caidor v. 011011d,,ga C11ty., 517 F.3d 601,604 (2d Cir. 2008).

SO ORDERED:

PEGGY KUO
United States Magistrate Judge
Dated:

Brooldyn, New Yark
Februaty 10, 2023

should be subtracted because the brief did not provide the basis for the appeal and such review was "optional");
,i 16d, (arguing that "[a]ny attorney time devoted to sort through court clerk administrative determinations
related to the motion for leave to file a late brief ... should ... be limited to less than 30 minutes in total .... ").)
Defendants' J'vfemorandmn of Law fails to argue these points in opposition to the J:vfotion, however, and I find
them to be meritless.
9