Stanczyk v. City of New York et al
MEMORANDUM and ORDER: Plaintiffs motion 64 for attorneys fees and costs is granted to the extent that plaintiff is awarded $18,837.45 in fees and costs. Defendants application for costs is likewise granted, and defendants are awarded $1,186.20 in costs. Ordered by Judge Frederic Block on 6/24/2013. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------- MEMORANDUM AND ORDER
Case No. 11-CV-0249 (FB) (RER)
- against -
THE CITY OF NEW YORK,
P.O. RICHARD DeMARTINO, Shield No.
12739, P.O. SHAUN GROSSWEILER, “JOHN
DOE” #1-10 (the names “John Doe” being
fictitious, as the true names are presently
unknown), individually and in their official
For the Plaintiff:
JON L. NORINSBERG, ESQ.
Law Offices of Jon L. Norinsberg
225 Broadway Suite 2700
New York, NY 10007
For the Defendants:
MICHAEL A. CARDOZO
Corporation Counsel of the City of New
RYAN G. SHAFFER
ANDREW P. WENZEL
100 Church Street, Room 3-217
New York, New York 10007
BLOCK, Senior District Judge:
On March 21, 2013, the jury returned a verdict finding defendant police officers
Shaun Grossweiler and Richard DeMartino (“defendants”) liable for the use of excessive force
against plaintiff Anna Stanczyk during an altercation that began when they accused her of
failing to clean up after her dog.1 The jury awarded Stanczyk $55,000 in compensatory
damages and $2,000 in punitive damages against each defendant officer, for a total of $59,000.
Plaintiff now moves for attorneys’ fees and costs under 42 U.S.C. § 1988 and Federal Rule of
Civil Procedure 54(d). Defendants have filed an application for costs pursuant to Federal Rule
of Civil Procedure 68. As discussed below, both parties’ motions are granted, with plaintiff’s
fee award being significantly less than requested because of defendants’ Rule 68 offer of
judgment, the questionable quality of her lead trial counsel’s representation, and the limited
degree of success she achieved.
Rule 68 Offer of Judgment
Federal Rule of Civil Procedure 54(d) directs courts to award costs to “the
prevailing party.” FED. R. CIV. P. 54(d). In a § 1983 action, these “costs” include attorneys’
fees. 42 U.S.C. § 1988 (“In any action or proceeding to enforce a provision of section . . .
1983 . . . of this title, . . . the court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee as part of the costs . . . .”); see also Orchano v. Advanced Recovery, Inc.,
107 F.3d 94, 97 (2d Cir. 1997) (“[A] plaintiff who has prevailed on a claim under § 1983 ‘should
ordinarily recover an attorney’s fee . . . .’” (citation omitted)). The jury’s verdict makes
Stanczyk the “prevailing party” under Rule 54(d) and § 1988. However, Rule 68 precludes
Stanczyk filed this action on January 18, 2011, alleging violations of her
constitutional rights under 42 U.S.C. § 1983 and a variety of state law causes of action.
Trial commenced on March 12, 2013. Ultimately, Stanczyk’s false arrest and excessive
force claims were the only ones submitted to the jury.
recovery by a prevailing plaintiff, such as Stanczyk, of costs incurred after an offer of
judgment is made if the judgment obtained is less than the unaccepted offer. See FED. R. CIV.
P. 68(d); see also Townsend v. Benjamin Enters., 679 F.3d 41, 58 (2d Cir. 2012) (“[A] prevailing
plaintiff may not recover from the defendant attorney’s fees and costs accrued after [service
of the] Offer of Judgment.”). In addition, Rule 68 requires that the plaintiff bear defendants’
costs, excluding attorneys’ fees, incurred after the offer date. See FED. R. CIV. P. 68(d); see also
Lyons v. Cunningham, 583 F. Supp. 1147, 1156 (S.D.N.Y. 2009) (“Rule 68 clearly indicates that
plaintiffs must pay defendants’ costs incurred after the offer of judgment.”); Hedru v. Metro
North Commuter R.R., 433 F. Supp. 2d 358, 359-60 (S.D.N.Y. 2006) (same); Boisson v. Banian Ltd.,
221 F.R.D. 378, 382 (E.D.N.Y. 2004) (refusing to award defendants post-offer attorneys’ fees).
As the Supreme Court has recognized,“application of Rule 68  require[s] plaintiffs to ‘think
very hard’ about whether continued litigation is worthwhile . . . .” Marek v. Chesny, 473 U.S.
1, 9 (1985).
On December 11, 2011, counsel for defendants served upon plaintiff the
following Rule 68 Offer of Judgment (“the Offer”):
Pursuant to Rule 68 of the Federal Rules of Civil Procedure,
defendant City of New York hereby offers to allow plaintiff Anna
Stanczyk to take a judgment against it in this action for the total
sum of One Hundred Fifty Thousand and One ($150,001.00)
Dollars, plus reasonable attorneys’ fees, expenses and costs to the
date of this offer for plaintiff’s federal claims.
This judgment shall be in full satisfaction of all federal and state
law claims or rights that plaintiff may have to damages, or any
other form of relief, arising out of the alleged acts or omissions of
defendants City of New York, Richard DeMartino, Shaun
Grossweiler, or any official, employee, or agent, either past or
present, of the City of New York, or any agency thereof in
connection with the facts and circumstances that are the subject
of this action. . . .
This offer of judgment is made for the purposes specified in Rule
68 of the Federal Rules of Civil Procedure and is not to be
construed as an admission of liability by any defendants, or any
official, employee or agent of the City of New York, or any agency
thereof; nor is it an admission that plaintiff has suffered any
Acceptance of this offer of judgment will act to release and
discharge defendants the City of New York, Richard DeMartino
and Shaun Grossweiler; their successors or assigns; and all past
and present officials, employees, representatives and agents of the
City of New York, or any agency thereof, from any and all claims
that were or could have been alleged by plaintiff in the abovereferenced action. . . .
Shaffer Decl. Ex. B [Rule 68 Offer of Judgment]. Stanczyk did not accept the Offer, and she
does not dispute that it exceeded the judgment. She asserts, however, that Rule 68 does not
bar her recovery of costs incurred after December 11, 2011 because the Offer applied only to
the City of New York, and thus defendant officers remain liable for her post-Offer costs.
This argument is misplaced—the Offer clearly applied to all defendants. While
it provided for judgment to be taken against the City, it required Stanczyk to “release and
discharge defendants the City of New York, Richard DeMartino and Shaun
Grossweiler . . . from any and all claims that were or could have been alleged by [Stanczyk]
in the  action.” The Offer also stated that the judgment would be in “full satisfaction of all
federal and state law claims or rights that [Stanczyk] may have to damages . . . arising out of
the alleged acts or omissions of defendants City of New York, Richard DeMartino, [and]
Shaun Grossweiler.” Furthermore, the Offer repeatedly referred to “defendants,” and was
submitted by Corporation Counsel of New York bearing the signature: “Attorney for
Defendants City, Richard DeMartino and Shaun Grossweiler.”
Because there is no
reasonable basis to conclude that the Offer pertained solely to the City, it prevents Stanczyk’s
recovery of costs incurred after the Offer and requires that she pay defendants’ post-Offer
Plaintiff’s Attorneys’ Fees and Other Costs
Using December 11, 2011 as the appropriate cut-off date, the Court now fixes
plaintiff’s attorneys’ fees under § 1988 and plaintiff’s other costs.
In calculating an award of attorneys’ fees under § 1988, district courts are
directed to first determine “the lodestar—the product of a reasonable hourly rate and the
reasonable number of hours required by the case—[which] creates a ‘presumptively
reasonable fee.’” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (citing Arbor
Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)).
The reasonable hourly rate reflects factors including the complexity of the case and the quality
of counsel’s representation. See Arbor Hill, 522 F.3d at 190 (determination of the reasonable
hourly rate includes consideration of “the novelty and difficulty” of the case) (citing Johnson
v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)); see also Millea, 658 F.3d at 16869 (“[C]onsiderations concerning the quality of a prevailing party’s counsel’s representation
normally are reflected in the reasonable hourly rate.”). Moreover, the lodestar amount may
be reduced to reflect the degree of success plaintiff achieved. See Hensley v. Eckerhart, 461 U.S.
424, 435 (1983) (finding that a fee award may require reduction where a plaintiff “has
achieved only partial or limited success”); see also G.B. ex rel. N.B. v. Tuxedo Union Free Sch.
Dist., 894 F. Supp. 2d 415, 428 (S.D.N.Y. 2012) (“[C]ourts may make adjustments to the
presumptively reasonable fee based on  the degree of success obtained by the prevailing
party.”); Adorno v. Port Auth. of N.Y. & N.J., 685 F. Supp. 2d 507, 511 (S.D.N.Y. 2010)
(recognizing that “courts have been adjusting the ‘presumptively reasonable fee’ for
traditional factors such as the degree of the plaintiff’s success” (collecting cases)).
Reasonable Hourly Rate
Plaintiff requests an attorneys’ fee award reflecting the following hourly rates:
Jon Norinsberg—$450; Eugene Bellin—$475; John Balestriere—$425; Alex Umansky—$175;
paralegal Nicole Burstyn—$125; Balestriere Law Firm paralegals—$100.
In “setting a reasonable hourly rate,” a district court should determine “what
rate a paying client would be willing to pay . . . bear[ing] in mind all of the case-specific
variables that [the Second Circuit] and other courts have identified as relevant to the
reasonableness of attorney’s fees.” Arbor Hill, 522 F.3d at 190. Notwithstanding defendants’
arguments to the contrary, counsels’ requested hourly rates are consistent with prevailing
rates in this district for attorneys of similar experience and skill.2 See, e.g., Ferrara v. CMR
“To determine the currently prevailing reasonable rate, courts look first to the
lawyer’s level of experience.” Kahlil v. Original Old Homestead Rest., Inc., 657 F. Supp. 2d
470, 475 (S.D.N.Y. 2009). Norinsberg is a seasoned civil rights litigator with over 20
years of experience. During this career, he has successfully litigated over 200 § 1983
cases. Bellin is another experienced civil rights attorney who has been practicing for 43
years, and much of his work has also involved § 1983 claims. Balestriere has been an
attorney for 15 years, having worked in both the State Attorney General’s Office and
Manhattan District Attorney’s Office. Finally, Umansky has been practicing law for
Contracting LLC, 848 F. Supp. 2d 304, 313 (E.D.N.Y. 2012) (“In recent years, courts in this
district have approved hourly fee rates in the range of $200 to $450 for partners, $100 to $300
for associates and $70 to $100 for paralegal assistants.” (citing Carco Grp, Inc. v. Maconachy,
2011 WL 6012426, at *3 (E.D.N.Y. Dec. 1, 2011) (collecting cases))); Toussie v. Cnty. of Suffolk,
2011 WL 2173870, at *2 (E.D.N.Y. May 31, 2011) (awarding $450/hour to an attorney with 34
years of experience); GMG Transwest Corp. v. PDK Labs., Inc., 2010 U.S. Dist. LEXIS 108581, at
*4 (E.D.N.Y. Oct. 12, 2010) (awarding $450/hour to an attorney with 40 years of experience,
and $400/hour to an attorney with 7 years of experience); Rodriguez v. Pressler & Pressler LLP,
2009 WL 689056, at *1 (E.D.N.Y. Mar. 16, 2009) (awarding $450/hour to a “civil rights lawyer
with 17 years of experience”). Accordingly, the Court awards Bellin, Balestriere, Umansky,
Burstyn, and the Balestriere paralegals their requested hourly rates.3
However, the hourly rate for Norinsberg—as lead trial counsel responsible for
the strategy and overall direction of Stanczyk’s case—requires a downward adjustment. First,
this was a relatively straightforward § 1983 matter that did not pose any novel or complex
questions of law. While plaintiff alleged multiple theories of liability, all of her claims were
premised upon a single continuous incident of limited duration. The case was submitted to
the jury after four days.
More importantly, Stanczyk’s outcome was adversely impacted due to the poor
quality of Norinsberg’s representation. In order to properly assess this factor, the Court
over two years, and much of his work has been devoted to § 1983 cases.
While recognizing that Bellin’s rate exceeds that customarily awarded for
similarly experienced attorneys in the district, the Court will not quibble with his rate
given the limited nature of Bellin’s participation in Stanczyk’s case.
briefly recounts the essential facts presented during trial. First, the evidence established that
Stanczyk was handcuffed, placed into the back seat of defendants’ patrol car, then repeatedly
punched in the face and chest by Officer DeMartino. Stanczyk testified that while she was in
the back seat of the car, Officer Grossweiler repeatedly slammed the car door on her legs. As
was observable to anyone in the courtroom, Stanczyk is a diminutive older woman, while the
officers were significantly larger and many years younger. The events that transpired during
the incident were so disturbing that eyewitnesses stopped to observe what was occurring.
Norinsberg introduced multiple color photos showing numerous dark bruises
on Stanczyk’s face and chest, purportedly taken shortly after the altercation. He likewise
presented testimony from Stanczyk and four medical experts concerning her injuries, which
included knee damage involving extensive bone bruising, large joint diffusion, and a medial
meniscal tear; post-traumatic stress disorder (“PTSD”); major depressive disorder; and anxiety
disorder. The experts collectively testified that Stanczyk’s injuries required treatment
involving an MRI, surgery, physical therapy, and psychological therapy, and that she would
require future medical treatment. For example, Dr. Urban testified that he performed
arthroscopic surgery on Stanczyk’s right knee joint, and that ten months after the surgery she
required anti-inflammatories and physical therapy. Dr. Malinowska testified that she met
with Stanczyk 51 times over the past two years for injuries relating to PTSD and depression,
and planned to continue similar treatment in the future. Dr. Knight testified that Stanczyk
continued to require bi-weekly therapy in order to treat PTSD and depression resulting from
Accordingly, there was ample evidence of Stanczyk’s physical and mental
injuries to support substantial compensatory and punitive damages.
The inadequacy of the awards may well have been due to Norinsberg’s failure
to provide the jury with any monetary semblance of guidance. As the Second Circuit has
stated, “[a] plaintiff is not permitted to throw himself on the generosity of the jury. If he
wants damages, he must prove them.” Bracey v. Bd. of Educ. of City of Bridgeport, 368 F.3d 108,
119 (2d Cir. 2004) (internal citation and quotation marks omitted). While the medical
witnesses testified as to Stanczyk’s past and future medical needs, Norinsberg did not present
any medical bills or testimony regarding their costs. See Matthews v. City of New York, 2006
WL 842392, at *9-10 (E.D.N.Y. Mar. 27, 2006) (finding jury’s $3500 damages award
“unsupported by the evidence” where plaintiff’s $354 ambulance bill was the sole piece of
evidence introduced relating to economic damages).
During trial, the Court alerted
Norinsberg to this failure, stating that there was not “any evidence [regarding] the cost of
[treatment] . . . There’s not a shred of evidence in here, other than she will have some
continuing cost. But it’s speculative as to what that cost will be.” Tr. Mar. 18, 2013 at 196-97.
The failure of Norinsberg to attach a dollar value to Stanczyk’s medical needs
was compounded by his summation:
Now, you’re also going to see damages questions [on the verdict
form]. Evaluating compensation and damages. I’ll tell you right
now, this is not my favorite part of talking to you, and I’ll tell you
why. The minute you start talking about damages, oh, that’s
what this case is about. The greedy plaintiff, the greedy plaintiff’s
lawyer. I’m going to tell you right now, we’re not going to be
throwing numbers out. You’re going to make that call. . . . I don’t
want to start throwing out numbers because I don’t want to taint
this lawsuit. We have bigger pictures. We have a bigger goal
here, which I’ll talk about on the punitive damages claim. . . .
When it comes to numbers and compensation, whatever you
folks—you determine the numbers. Whatever you determine,
we’ll live with it. Because if eight people say it’s fair, it’s fair,
okay. I don’t want to taint this.
Tr. Mar. 19, 2013 at 118-20. Norinsberg could have requested the Court’s permission to
suggest some dollar amounts. If he had done so, the Court—as is its practice—would have
allowed him to do so. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997)
(“[The decision whether to permit counsel to] suggest a specific sum as damages . . . is best
left to the discretion of the trial judge, who may either prohibit counsel from mentioning
specific figures or impose reasonable limitations.”). In sum, given the absence of any
testimony or evidence as to the costs of Stanczyk’s past and future medical needs, coupled
with Norinsberg’s laissez-faire summation, the jury was bereft of any guidance to assist it in
determining appropriate damages.
Furthermore, the quality of Norinsberg’s post-verdict representation has also
adversely impacted plaintiff’s case.
Immediately after the jury rendered its verdict,
Norinsberg stated that he would be moving for a new trial solely on the issue of damages
because the damages awards were “insufficient.” Tr. Mar. 21, 2013 at 16. Accordingly, the
Court set a briefing schedule. However, five days later Norinsberg asked the Court to enter
judgment, opting instead to directly appeal to the Second Circuit Court of Appeals.4
Norinsberg’s decision to bypass the district court now significantly hampers
plaintiff’s ability to obtain higher damages. Where “a party has not attacked the adequacy of
a verdict in a motion for judgment as a matter of law or for a new trial,” the Second Circuit
Presumably counsel would not have chosen to file the current fee application
but for the requirement that a prevailing party file a motion for costs “no later than 14
days after the entry of judgment.” FED. R. CIV. P. 54(d)(2)(B)(i).
has repeatedly indicated its refusal to review challenges to the adequacy of a jury’s damages
award except for those limited circumstances where “a verdict offends fundamental
conceptions of allowable damages  or presents so plain an error that it should be entertained
in order to prevent a miscarriage of justice.” Zinman v. Black & Decker, 983 F.2d 431, 437 (2d
Cir. 1993) (finding no plain error and, accordingly, that plaintiff “waived any right to
challenge the adequacy of the jury’s award” (citations and internal quotation marks omitted));
see also Vaught v. Childs Co., 277 F.2d 516, 518 (2d Cir. 1960) (holding that rather than directly
appealing the verdict, appellant should have first filed a motion with the district court for a
new trial or to set aside the verdict, which would have permitted the trial court to have
“passed upon th[e] point . . . in  light of all the facts then recently before it”; affirming the
judgment due to appellant’s failure to file such a motion).
Federal Rule of Civil Procedure 59, however, permits a trial court to set aside
a jury’s damages award based upon consideration of “awards in similar cases.” See FED. R.
CIV. P. 59; Perdue v. City Univ. of New York, 13 F. Supp. 2d 326, 337 (E.D.N.Y. 1998) (citing Lee
v. Edwards, 101 F.3d 805, 805 (2d Cir. 1996)); see also Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir.
1990) (“Reference to other awards in similar cases is proper.”); Candelaria v. Coughlin, 181
F.R.D. 278, 282 (S.D.N.Y. 1998) (stating the same and denying plaintiff’s motion for a new trial
on the basis of inadequate punitive damages).5
Although there are many instances where courts have set aside a jury’s
compensatory damages award as inadequate, see, e.g., Raysor v. Port Auth. of New York &
New Jersey, 768 F.2d 34, 39 (2d Cir. 1985), the Court is not aware of any case where a new
trial was granted because of inadequate punitive damages. See Brink’s Inc. v. City of New
York, 546 F. Supp. 403, 413 (S.D.N.Y. 1982) (noting that juries are “vested with a broad
discretion in assessing punitive damages.”).
At the conclusion of trial, the Court acknowledged that the damages awards
were significantly smaller than plaintiff might have hoped. Given the Court’s overall
experience and knowledge concerning compensatory damage awards in similar cases,there
existed a significant likelihood that it might have been receptive to plaintiff’s related post-trial
briefing. See, e.g., Tookes v. Port Auth., 2011 WL 3555813, at *4 (E.D.N.Y. Aug. 11, 2011) (Block,
J.) (granting plaintiff’s motion for a new trial based upon review of comparable compensatory
damage award cases awarding higher amounts for similar injuries). However, given
Norinsberg’s decision not to file a motion challenging the adequacy of the jury’s award, the
Court had no opportunity to decide whether the damages were inadequate, and counsel has
severely limited the prospect of having the Second Circuit set them aside. Norinsberg’s
requested hourly rate “fails to provide a reasonable fee for the quality of representation
provided,” Blum v. Stenson, 465 U.S. 886, 900 (1984), and his hourly rate is reduced to $350.6
Time Reasonably Expended
The Court has determined that counsel reasonably expended 59.7 hours of time
prior to the Offer date. Counsels’ submitted billing records easily meet their burden, as the
records contain well-documented and detailed explanations of the work performed. See New
York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983) (holding
fee applications must be supported by contemporaneous time records that “specify, for each
During trial, plaintiff’s counsel also made a number of non-meritorious mistrial
motions which further call into question the quality of his representation. For example,
counsel repeatedly objected to the admission of evidence relating to plaintiff’s mental
condition before the incident—evidence which was admissible given that plaintiff’s
prior mental state was directly at issue in the case. See FED. R. EVID. 401 (“Evidence is
relevant if  it has any tendency to make a fact more or less probable than it would be
without the evidence; and  the fact is of consequence in determining the action.”).
attorney, the date, the hours expended, and the nature of the work done”); Luca v. Cnty. of
Nassau, 698 F. Supp. 2d 296, 301 (E.D.N.Y. 2010) (“A fee applicant bears the burden of
demonstrating the hours expended and the nature of the work performed.”).
Defendants take issue only with 7.9 hours of counsels’ pre-Offer time, asserting
that this should be excluded because it “relate[s] exclusively to plaintiff’s state law causes of
action.” The argument is misplaced. First, Stanczyk’s state-law claims were based upon the
same events giving rise to her federal claims. See Tucker v. City of New York, 704 F. Supp. 2d
347, 358 (S.D.N.Y. 2010) (“[I]f a plaintiff prevails on a claim that generates a fee award, [s]he
may recover for work done on other claims if they were substantially related to the claim on
which [s]he prevailed.” (citation omitted)). “Moreover, the assertion of [plaintiff’s] state-law
claims . . . can fairly be viewed as a reasonable strategy by counsel for maximizing the
likelihood of a successful outcome . . . .” Id. (finding that inclusion of plaintiff’s state law
claims in the complaint “potentially increased plaintiff’s bargaining leverage in seeking to
resolve the entire suit”). Thus, “the work done in state court and at the 50–h hearing to
preserve plaintiff’s state-law claims was reasonably calculated to improve the prospects for
[her] federal claims, at least by way of a future settlement.” Id. This finding “in itself suffices
to justify awarding [Stanczyk] reasonable fees for that effort.” Id.
Based upon the foregoing, the presumptively reasonable fee is $18,597.50,
calculated as follows:
Jon L. Norinsberg
Eugene M. Bellin
Degree of Success Obtained
Having determined the presumptively reasonable fee, the final attorneys’ fee
award should be adjusted to reflect Stanczyk’s limited degree of success. See Hensley, 461 U.S.
at 435 (holding that a fee award may require reduction where a plaintiff “has achieved only
partial or limited success”).
As recognized by the Second Circuit, “the most critical factor in a district court’s
determination of what constitutes reasonable attorney’s fees in a given case is the degree of
success obtained by the plaintiff.” Barfield v. N.Y. City Health & Hosps. Corp., 537 F.3d 132, 152
(2d Cir. 2008) (citations and quotation marks omitted) (“Both ‘the quantity and quality of relief
obtained,’ as compared to what the plaintiff sought to achieve as evidenced in her complaint,
are key factors in determining the degree of success achieved.”); see also Hensley, 461 U.S. at
436 (“There is no precise rule or formula” for adjusting the lodestar to account for limited
success). “Where recovery of private damages is the purpose of . . . civil rights litigation, a
district court, in fixing fees, is obligated to give primary consideration to the amount of
damages awarded as compared to the amount sought.” Farrar v. Hobby, 506 U.S. 103, 114
(1992) (citation omitted).
The main objective of Stanczyk’s lawsuit was the recovery of punitive damages,
in order to punish defendant officers and deter similar future conduct. Norinsberg stated
during his summation: “We have a bigger goal here, which I’ll talk about on the punitive
damages claim . . . The larger objective in this lawsuit is punitive damages. . . . Punitive
damages is to punish. The main goal is to punish, but the other point is to deter.” See Tr. Mar.
19, 2013 at 120-22. Plaintiff’s complaint sought $2,000,000 in compensatory damages and
$1,000,000 in punitive damages. It is doubtful that the $2,000 punitive damages awards
against each officer will be sufficient to achieve either of plaintiff’s twin goals of punishment
and deterrence. See, e.g., Weyant v. Okst, 182 F.3d 902, at *3 (2d Cir. 1999) (characterizing
$2,500 punitive damages award as “small . . . as compared to the [$75,000] award of
compensatory damages”); Kahn v. Hip Centralized Lab. Servs., 2008 WL 4283348, at *6 (E.D.N.Y.
Sept. 17, 2008) (striking $11,000 punitive damages award from jury’s verdict because it
represented “a relatively small sum in comparison to the $200,000 award for emotional
damages,” suggesting “that the jury . . . did not find [the defendant’s conduct] to be wholly
Similarly, Stanczyk’s $55,000 compensatory damages award pales in
comparison to the amount sought in her complaint. These awards therefore indicate that
Stanczyk achieved only a limited degree of success.7 Counsel is awarded $16,523.75 in
attorneys’ fees, representing a reduction of the presumptively reasonable fee by the
percentage of hours counsel worked prior to the Offer as compared to the case as a whole.
The Court is mindful that although it may reduce counsels’ fee to account for
Stanczyk’s limited degree of success, the fee should not be reduced merely because it
“would be disproportionate to the financial interest at stake in the litigation.” Kassim v.
City of Schenectady, 415 F.3d 246, 252 (2d. Cir. 2005).
In assessing plaintiff’s costs, “[t]he Second Circuit has held that reasonable
out-of-pocket disbursements ordinarily charged to clients are recoverable.” Thorsen v. Cnty.
of Nassau, 2011 WL 1004862, at *6 (E.D.N.Y. Mar. 17, 2011); see also U.S. Football League v. Nat’l
Football, 887 F.2d 408, 416 (2d Cir. 1989). “[E]xpenditures for filing fees, process servers,
subpoena/witness fees, and transcripts are routinely recoverable . . . .” Thorsen, 2011 WL
1004862, at *6; see also Kuzma v. IRS, 821 F.2d 930, 933-34 (2d Cir. 1987) (“Identifiable,
out-of-pocket disbursements for items such as photocopying, travel, and telephone costs are
generally taxable under § 1988 . . . .”).
Plaintiff is entitled to $2,313.70 in pre-Offer costs as follows:
Subpoena/Witness Procurement Fees
Copying of Plaintiff’s Medical Records
The Court has excluded those costs related to retaining experts Marcia Knight
and Randall Ehrlich. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 102 (1991) (holding that
42 U.S.C. § 1988 does not convey the authority to shift expert fees to the losing party as part
of a ‘reasonable attorney’s fee’ in a § 1983 case); see also Boisson, 221 F.R.D. at 379 (“Fees for
expert witnesses are taxable only to the same extent as ordinary witness fees.”). Likewise,
plaintiff is not entitled to fees relating to the testimony of doctors Knight, Urban, and
Malinowska because their testimony occurred after the Offer.
Defendants’ Motion for Costs
Under Rule 68, defendants are entitled to $1,186.20 in post-Offer costs as follows:
Copying of Plaintiff’s Medical Records
While they may receive payment for costs relating to their experts’ deposition
appearances, defendants may not recover for the costs of Dr. Ramesh Gidumal’s deposition
attendance because he did not testify at trial nor was his deposition testimony used or
received into evidence. See Local Rule 54.1(c)(2); In re Omeprazole Patent Litig., 2012 WL
5427849, at *6 (S.D.N.Y. Nov. 7, 2012) (requiring that witnesses’ depositions be introduced at
trial in order to award costs relating to witnesses’ deposition attendance). For this same
reason, defendants are not entitled to costs incurred in creating the videotaped deposition of
Dr. Gidumal. See Boisson, 221 F.R.D. at 380 (“[T]he cost of deposition transcripts are properly
taxed as costs only where such [testimony] [is] obtained for use at trial and not solely for
discovery purposes and the convenience of counsel.”). However, defendants may recover for
those costs incurred in obtaining Stanczyk’s deposition transcript, as they utilized this
testimony extensively at trial.
Defendants have been awarded costs for charges incurred in obtaining certified
copies of plaintiff’s medical records from Belle Harbor Physical Therapy and Long Island
Radiology Associates, P.C. The Court is satisfied that these copies were “necessarily obtained
for use in the case,” such that they are properly awardable. 28 U.S.C. § 1920; see also Karmel
v. City of New York, 2008 WL 216929, at *3 (S.D.N.Y. Jan. 9, 2008) (awarding defendants costs
associated with obtaining plaintiff’s medical records where those records were “admitted into
evidence or otherwise used at trial”).
Because defendants have not sufficiently demonstrated that the daily trial
transcripts they ordered were “necessarily obtained” for use at trial, they are not entitled to
recovery of these costs. See Karmel, 2008 WL 216929, at *3 (“The trial in the present case was
not overly long or complicated, and Defendants had at least two attorneys present at all times
during the trial, one of whom could have been taking sufficient enough notes during the
proceedings to make daily trial transcripts unnecessary.”); see also John & Kathyn G. v. Bd. of
Educ. of Mt. Vernon Pub. Schs., 891 F. Supp. 122, 123 (S.D.N.Y. 1999) (“Daily transcripts of trial
testimony are not customary.”).
Finally, defendants are not entitled to payment for
investigative services provided by E.R. Quinn Co., as these services were rendered prior to
the Offer date.
Plaintiff’s Motion for Attorneys’ Fees and Costs is granted to the extent that
plaintiff is awarded $18,837.45 in fees and costs. Defendants’ Application for Costs is likewise
granted, and defendants are awarded $1,186.20 in costs.
/S/ Frederic Block_______________
Senior United States District Judge
Brooklyn, New York
June 21, 2013
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