Restivo et al v. Nassau County et al

Filing 323

MEMORANDUM & ORDER granting in part and denying in part 300 Motion for Attorney Fees. SO ORDERED that NSB's supplemental motion for attorneys' fees (Docket Entry 300) is GRANTED IN PART and DENIED IN PART. The Court awards attorney fees in the amount of $572,324.2511 plus $21,806.5412 in costs for a total of $594,130.79 in attorney fees and costs. The Clerk of the Court is directed to enter judgment for $594,130.79 in attorneys' fees and costs. Post-judgment interest, calculated pursuant to 28 U.S.C. § 1961(a), shall run on the award of attorney fees and costs from the date of this Memorandum & Order until the date the fees and costs are paid. Ordered by Judge Joanna Seybert on 8/28/2017. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
JOHN RESTIVO and DENNIS HALSTEAD,
ET AL.,
Plaintiffs,
MEMORANDUM & ORDER
06-CV-6720(JS)(SIL)

-againstNASSAU COUNTY, CAROLANN HESSEMANN,
AS EXECUTRIX FOR THE ESTATE OF
JOSEPH VOLPE, ET AL.,

FILED 
CLERK 

8/28/2017 12:18 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Defendants.
------------------------------------X
APPEARANCES
For Plaintiffs:
Barry C. Scheck, Esq.
Monica R. Shah, Esq.
Nick Joel Brustin, Esq.
Anna B. Hoffmann, Esq.
Peter Jon Neufeld, Esq.
Richard W. Sawyer, Esq.
Neufeld Scheck & Brustin LLP
99 Hudson Street, 8th Floor
New York, New York 10013
Joshua Evan Dubin, Esq.
Joshua E. Dubin, Esq., P.A.
212 NE 16th Terrace
Fort Lauderdale, FL 33301

David Graff, Esq.
Rachael Ann Kierych, Esq.
Anderson Kill P.C.
1251 Avenue of The Americas, 42nd Floor
New York, NY 10020
Leon Friedman, Esq.
148 E. 78th St.
New York, NY 10075
For Defendants:
Nassau County

Daniel A. Bartoldus, Esq.
Amy E. Bedell, Esq.
Annemarie Susan Jones, Esq.
Lewis Johs Avallone Aviles & Kaufman, LLP

One CA Plaza, Suite 225
Islandia, NY 11749
Liora M. Ben-Sorek, Esq.
Dennis J. Saffran, Esq.
Sondra Meryl Toscano, Esq.
Office of the Nassau County Attorney
One West Street
Mineola, New York 11501
Carolann Hessemann,
as executrix of
the Estate of
Joseph Volpe
Peter J. Tomao, Esq.
Richard M. Langone, Esq.
Law Office of Peter J. Tomao
600 Old Country Rd, Suite 328
Garden City, NY 11530
Thomas J. McNamara, Esq.
Certilman, Balin, Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, NY 11554
SEYBERT, District Judge:
Currently pending before the Court is Neufeld Scheck &
Brustin LLP’s (“NSB”) supplemental motion for attorneys’ fees
(Docket Entry 300).

For the reasons that follow, the motion is

GRANTED IN PART and DENIED IN PART.

NSB is awarded $594,130.79 in

fees and costs for its post-judgment work on this matter.
BACKGROUND
The

Court

assumes

familiarity

with

the

facts

and

procedural history of this case, particularly its November 30,
2015 Order awarding NSB $4,997,914.55 in attorneys’ fees and costs.
See Restivo

v.

Nassau

Cty.,

(E.D.N.Y. Nov. 30, 2015).

No.

06-CV-6720,

2015

WL

7734100

That award encompassed NSB’s work from
2

the filing of the case in 2006 to the entry of judgment in 2014.
Restivo, 2015 WL 7734100, at *1-2.

NSB now seeks an additional

award of fees and costs for its work since 2014 on the Second
Circuit appeal and various post-judgment proceedings.
Motion, Docket Entry 300, at 1.)

(Supp. Fee

In light of this matter’s long

history, the Court summarizes only the facts relevant to the
instant motion.
I.

Pre-Trial Proceedings and Trial
Plaintiffs

John

Restivo

and

Dennis

Halstead

(“Plaintiffs”) brought this Section 1983 suit seeking to prove
that Nassau County Police Detective Joseph Volpe (“Volpe”) caused
their

wrongful

convictions

for

the

death

of

Theresa

Fusco. 1

Discovery included thirty-five depositions, spanning over fiftyfour

deposition

requests.

days,

and

twenty-three

separate

discovery

(Hoffmann 2014 Decl., Docket Entry 234, ¶ 7.)

was tried twice.

The case

The first trial lasted thirty-one trial days

over eleven weeks and included the presentation of forty-two
witnesses.

The second trial spanned seventeen trial days over

five weeks and included the presentation of forty witnesses.
(Hoffmann 2014 Decl. ¶ 8.)
involving

extensive

Both trials were technically complex,

expert

forensic hair comparison.

testimony

about

DNA

evidence

(Hoffmann 2014 Decl. ¶ 9.)

1

and

Plaintiffs

Plaintiffs originally commenced this case against Volpe, Nassau
County, and others.
3

offered nine separate expert witnesses and Defendants offered
four. (Hoffmann 2014 Decl. ¶ 9.)

There was litigation over the

admissibility of the opinion testimony of eight of these experts,
and the parties conducted a five-day Daubert hearing at which
Plaintiffs

largely

prevailed.

(Hoffmann

2014

Decl.

¶

9.)

Throughout most of discovery and the first trial, Plaintiffs’ case
was joined with that of a third man, John Kogut, who also claimed
he was wrongfully convicted of the Theresa Fusco murder. (Hoffmann
2014 Decl. ¶ 10.) This joinder substantially complicated the legal
and factual issues in the case, given that Kogut had confessed to
the crime, while Plaintiffs had not.

(Hoffmann 2014 Decl. ¶ 10.)

At the conclusion of the second trial, the jury found
Volpe liable for unconstitutionally depriving Plaintiffs of their
right to a fair trial and for malicious prosecution.
Sheet, Docket Entry 198.)
each

in

damages,

which

(See Verdict

The jury awarded Plaintiffs $18 million
amounts

Plaintiffs were imprisoned.

to

$1

million

for

each

year

Between 2006 and 2014, the parties

endured several rounds of substantial legal briefing, including a
motion for judgment on the pleadings, a motion for reconsideration,
a motion for summary judgment, post-trial briefing after the first
trial, another motion for reconsideration, and post-trial briefing
after the second trial.

(Hoffmann 2014 Decl. ¶ 11.)

4

II.

The Appeal
Because Volpe died while the case was pending, judgment

was entered against Carolann Hessemann as executrix for the estate
of Volpe (“Defendant” or “the Estate”) on November 14, 2014 (the
“Judgment”).

(See Stip. and Order, Docket Entry 122; J., Docket

Entry 228.)

Subsequently, the Estate timely filed a notice of

appeal.

(See Notice of Appeal, Docket Entry 232.)

Plaintiffs

also filed a notice of cross appeal related to the dismissal of
certain claims against Nassau County; however, the cross-appeal
was later voluntarily withdrawn.

(See Notice of Cross Appeal,

Docket Entry 237; Mandate, Docket Entry 281.)
The Estate’s appeal included two rounds of briefing and
related motion practice.

During the initial round of briefing,

the Estate requested permission to file a brief approximately twice
the

length

permitted

under

the

Second

ultimately raised eight issues on appeal.
Docket

Entry

300-1,

¶

8.)

After

Circuit’s

rules

and

(Hoffmann 2017 Decl.,

this

Court

issued

its

November 30, 2015 Order awarding attorneys’ fees, the Estate filed
an

Amended

Notice

of

Appeal,

and

the

Second

Circuit

allowed

supplemental briefing on the reasonableness of the fee award. (See
Amended Notice of Appeal, Docket Entry 286; Restivo v. Nassau Cty.,
No. 14-4662, 2d Circuit Docket Entry 177.)

During the appeal, the

parties engaged in additional motion practice, including a motion
to strike, a motion for sanctions and a motion to dismiss.
5

(See

Restivo v. Nassau Cty., No. 14-4662, 2d Cir. Docket Entries 73,
133, 210.)

On January 19, 2017, the Second Circuit issued an 112-

page opinion affirming the Judgment in all respects.

See Restivo

v. Hessemann, 846 F.3d 547 (2d Cir. 2017).
III. Post-Judgment Proceedings
In

2015,

while

litigating

the

appeal,

the

parties

briefed a series of complex motions and appeared for several
hearings in this Court.

The Estate sought to stay enforcement of

the Judgment pending appeal, and for the first time, suggested
that it was unclear whether the County was obligated to indemnify
the Estate.

(See Estate Mot. to Stay, Docket Entry 243.)

At that

time, the County and the Estate were represented by the same firm,
and because their interests appeared to be adverse to each other,
Plaintiffs moved to disqualify counsel from representing both
entities.

(See Conflict Mot., Docket Entry 244.)

Additionally,

Plaintiffs filed a petition pursuant to New York C.P.L.R. Section
5227 for a special proceeding and entry of judgment against the
County for the full amount of the Judgment against the Estate.
(See Pls.’ Pet., Docket Entry 253.)

Counsel for the Estate and

the County subsequently withdrew, and both entities were ordered
to retain new counsel.

(See Mar. 17, 2015 Minute Order, Docket

Entry 259.)
After another round of briefing regarding the County’s
obligation to indemnify, the parties negotiated a Stipulation and
6

Consent Decree.

It provided that the County would indemnify the

Estate and that enforcement of the Judgment would be stayed while
the appeal was pending.
278, § II, ¶¶ 4-5.)

(Stip. and Consent Decree, Docket Entry

Additionally, the County agreed to prepare “a

draft ordinance seeking authority to bond forty five million
dollars ($45,000,000.00) to cover its indemnification obligations
. . . [and] present the draft ordinance to the Nassau County
Legislature for consideration at the next regularly scheduled
meeting

of

the

stipulation.”

Legislature

following

the

execution

(Stip. and Consent Decree, § II, ¶ 6.)

of

this

The Court

so-ordered the Stipulation and Consent Decree on July 1, 2015.
After discovering that the County had failed to draft
and present the bond ordinance to the Nassau County Legislature
until July 11, 2016, Plaintiffs filed a motion to hold the County
in contempt and lift the stay of enforcement of the Judgment on
July 20, 2016.

(See Contempt Mot., Docket Entry 295.)

At a

hearing on February 23, 2017, the Court granted that motion in
part

and

ordered

the

County

to

obtain

a

bond

or

otherwise

demonstrate why a stay of enforcement was warranted given its noncompliance with the Stipulation and Consent Decree.
2017 Minute Order, Docket Entry 304.)

(See Feb. 23,

Thereafter, the County

Treasurer deposited $45 million in a special account designated to
satisfy the Judgment should the appeal fail, and the parties
negotiated an Order renewing the stay, which the Court so-ordered
7

on March 29, 2017.

(See Letter Mot. to Stay, Docket Entry 310;

Order Renewing Stay, Docket Entry 315.)

Pursuant to that Order,

the County agreed to “pay the Judgment in full within thirty (30)
days after it becomes final,” and to seek court approval before
removing any funds from the account.
IV.

(See Order Renewing Stay.)

NSB’s Supplemental Fee Request
As

discussed,

the

Court

previously

$4,997,914.55 in attorneys’ fees and costs.
7734100, at *5.

awarded

NSB

See Restivo, 2015 WL

For the work on the appeal and various post-

judgment proceedings, NSB requests an additional $615,804.13 in
attorneys’ fees and $21,410.01 in costs.
4.)

(Supp. Fee Motion at 3-

During this period, fourteen different lawyers from NSB and

outside counsel Anderson Kill P.C. and two paralegals worked on
the matter.

(Hoffmann 2017 Decl. ¶ 5.)
DISCUSSION

I.

Attorneys’ Fees in Section 1983 Cases
Section 1988(b) empowers the Court to award reasonable

attorney fees to the prevailing party in a section 1983 action.
See 42 U.S.C. § 1988.

After the court finds that a party has

prevailed, it must determine a reasonable fee to award to the
prevailing party’s attorneys.
(2d Cir. 1992).

Grant v. Martinez, 973 F.2d 96, 99

The lodestar approach is generally used to

calculate reasonable attorney fees.

“Under this approach, the

number of hours reasonably expended on the litigation is multiplied
8

by a reasonable hourly rate for attorneys and paraprofessionals.”
Id.; DiFilippo v. Morizio, 759 F.2d 231, 234 (2d Cir. 1985)
(“where . . . the party achieves success on the merits, an award
of all reasonable hours at a reasonable hourly rate, i.e., the
lodestar figure, is presumptively appropriate”).

Thus, the Court

must arrive at a reasonable hourly rate for the attorneys who
worked on the case and “examine the hours expended by counsel and
the value of the work product of the particular expenditures to
the client’s case.”

Gierlinger v. Gleason, 160 F.3d 858, 876 (2d

Cir. 1998) (quoting DiFilippo v. Morizio, 759 F.2d 231, 235–36 (2d
Cir. 1985)).
II.

Reasonable Hourly Rate
The Court previously held that, based on its experience

and unique expertise in wrongful conviction cases, NSB was entitled
to hourly rates prevailing in the Southern District of New York
rather than the Eastern District of New York.
7734100, at *3.

Restivo, 2015 WL

Specifically, the Court approved the following

hourly rates: $700 for Barry Scheck and Peter Neufeld; $600 for
Nick Brustin; $500 for Anna Benvenutti Hoffmann, Deborah Cornwall,
and Josh Dubin; $400 for Monica Shah; $350 for Sonam Henderson;
$300 for Alexandra Lampert; and $250 for Elizabeth Daniel Vasquez.
Id. at *5, n.7.

The Court also approved Professor Leon Friedman’s

(“Professor Friedman”) hourly rate of $500.

9

Id. at *5 & n.9.

Finally, the Court awarded $125 per hour for paralegals.

Id. at

*5, n.7.
In the supplemental motion, NSB requests the same hourly
rates for Peter Neufeld, Nick Brustin, Anna Benvenutti Hoffmann,
Alexandra

Lampert,

Elizabeth

Daniel

Friedman. (Supp. Fee Mot. at 3.)

Vasquez,

and

Professor

Additionally, NSB requests the

same hourly rate for two paralegals who worked on the case between
2014 and 2017.

(Supp. Fee Mot. at 3.)

Defendant suggests that NSB is not entitled to Southern
District rates for this phase of the case because they are not
experts

in

appellate

litigation

or

enforcement

(Def.’s Opp., Docket Entry 306-1, at 14-15.)

of

judgments.

In fact, Defendant

contends, NSB retained outside attorneys to assist it in these
areas.

(Def.’s Opp. at 15.)

Defendant argues that the factors

that led to the application of Southern District rates in the
Court’s prior order--that NSB has expertise litigating wrongful
conviction suits, the trials were extensive and complex, and NSB
achieved an excellent result--do not apply to their supplemental
request for fees.

(Def.’s Opp. at 14-15.)

The Court disagrees.

As an initial matter, Defendant has not cited any case
law to support applying rates from different districts in the same
litigation, and the Court is not aware of any.

Moreover, NSB

undoubtedly relied on its expertise in wrongful conviction suits
to prevail on the appeal and during the enforcement proceedings.
10

The fact that NSB sought assistance from outside experts in order
to achieve the best result for their clients should not lead to
the

application

of

lower

rates.

Finally,

Plaintiffs

were

successful on the Estate’s appeal and during the enforcement
proceedings.

Because the Court previously approved these rates,

and there is no reason to revisit the appropriate hourly rates for
these attorneys and paralegals, the Court will use these rates to
calculate the fee award. 2
NSB requests an hourly rate of $250 for Julia Torti
(“Torti”), a former associate at NSB who graduated from law school
in 2013.
same

(Torti Decl., Docket Entry 300-6, ¶¶ 5, 9.)

hourly

rate

approved

for

Elizabeth

This is the

Daniel

Vasquez

(“Vasquez”), a former NSB associate who also graduated in 2013.
(Vasquez Decl., Docket Entry 300-5, at ¶¶ 5, 9.)

Because the two

attorneys

and

have

similar

levels

of

experience,

the

Court

previously approved an hourly rate of $250 for Vasquez, the Court
finds that the requested rate of $250 for Torti is reasonable.
Defendant argues that this rate is excessive because Torti handled
“rudimentary” tasks such as cite checking, editing documents, and

2

Likewise, the Court declines to reduce the requested (and
previously approved) rate of $500 per hour for Professor
Friedman. (See Def.’s Opp. at 19-20.) Considering Professor
Friedman’s considerable experience and expertise, (see Friedman
2014 Decl., Docket Entry 233-9), and the fact that $500 per hour
falls within the range of hourly rates for experienced civil
rights attorneys in the Southern District, the Court sees no
reason to reconsider its prior determination.
11

preparing exhibits. (Def.’s Opp. at 18-19.) However, as discussed
infra, such tasks occasionally require the attention of an attorney
and are routinely assigned to a junior associate such as Torti.
Additionally, this rate is consistent with rates awarded to junior
associates in cases in the Southern District.

See, e.g., Rozell

v. Ross-Holst, 576 F. Supp. 2d 527, 546 (S.D.N.Y. 2008) (awarding
$250 per hour for junior associates in employment discrimination
case).
NSB requests an hourly rate of $650 for David Goldberg
(“Goldberg”),

a

“nationally

recognized

consulted on the Second Circuit appeal.

appellate

expert”

who

(Hoffmann 2017 Decl. ¶ 5;

Goldberg Decl., Docket Entry 300-7, ¶ 2.)

Goldberg, a former Law

Clerk at the Court of Appeals for the D.C. Circuit and the Supreme
Court, specializes in “public law and civil rights litigation,
primarily before the U.S. Supreme Court and federal appellate
courts.”

(Goldberg Decl. ¶¶ 5-6.)

He also co-founded Donahue &

Goldberg, LLP, a public interest law firm, and has been involved
in more than 120 cases before the Supreme Court and served as
counsel to a party in approximately twenty Supreme Court cases.
(Goldberg Decl. ¶¶ 8, 13.)

Goldberg’s experience and expertise in

appellate practice is undisputed, and the Court finds that an
hourly rate of $650 is reasonable for his work on the case.

See,

e.g., Abdell v. City of N.Y., No. 05-CV-8453, 2015 WL 898974, at
*3

(S.D.N.Y.

Mar.

2,

2015)

(awarding
12

$600-650

an

hour

for

experienced counsel in civil rights action); Powell v. Metro One
Loss Prevention Servs. Grp. (Guard Div. NY), Inc., No. 12-CV-4221,
2015 WL 9287121, at *3 (S.D.N.Y. Feb. 5, 2015), R&R adopted, 2015
WL 9255338 (S.D.N.Y. Dec. 17, 2015) (awarding $650 per hour for
partner with thirty-five years of experience); Rozell, 576 F. Supp.
2d at 546 (awarding $600 per hour for partners and counsel in
employment discrimination case).

See also De Curtis v. Upward

Bound Int’l, Inc., No. 09-CV-5378, 2011 WL 4549412, at *8 (S.D.N.Y.
Sept. 27, 2011) (“Consistent precedent in the Southern District
reveals that rates awarded to experienced civil rights attorneys
over the past ten years have ranged from $250 to $600 . . . with
average awards increasing over time.”) (internal quotation marks,
citation, and alterations omitted).
III. Hours Expended
Excluding the hours expended by outside counsel Anderson
Kill

P.C.,

NSB

seeks

$574,715.00

for

1,503.2

hours

of

total

attorney and paralegal time for its work between 2014 and 2017. 3
(Supp. Fee Mot. at 3.)

Defendants object to the hours expended on

several grounds, including that certain hours were redundant,
excessive, and unnecessary.
object

to

the

hours

(Def.’s Opp. at 9-13.)

related

to

enforcement

of

They further
the

Judgment.

(Def.’s Opp. at 12.)

3

The Court will address the work performed by Anderson Kill P.C.
in a separate section.
13

A.

Redundant Hours
Defendant argues that NSB “assigned an inordinate number

of

attorneys

to

litigate

the

action”

and

assigned

multiple

attorneys and paralegals, as well as outside counsel, to certain
tasks.

(Def.’s Opp. at 9-10.)

As an example, Defendant points

out that three NSB attorneys--two partners (Hoffmann and Brustin)
and

one

associate

argument.

(Torti)--attended

(Def.’s Opp. at 10.)

the

Second

Circuit

oral

Further, it argues that while NSB

was working on various enforcement issues, as well as drafting the
appellate brief, the attorneys and paralegals were duplicating
work.

(Langone Decl., Docket Entry 306, ¶¶ 14, 16.)

disagrees.
same

The Court

The fact that more than one attorney worked on the

project

duplicated.

does

not

necessarily

establish

that

work

was

It is common for several attorneys and paralegals to

collaborate on the same project, especially, for example, drafting
an appellate brief in a case of this size and complexity.
Regarding the time billed for the Second Circuit oral
argument, the Court declines to deduct the 2.5 hours billed by
Brustin and Torti.

(Langone Decl. ¶ 12.)

It is not unusual to

have more than one attorney attend significant court appearances
such as oral argument, and the Court finds that having three
attorneys present is not excessive.

See N.Y. State Ass’n for

Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.
1983) (“Under section 1988, prevailing parties are not barred as
14

a matter of law from receiving fees for sending a second attorney
to depositions or an extra lawyer into court to observe and
assist.”).
Additionally, Defendant contends that the Court should
“reduce the claim by any fees unnecessarily assigned to senior
staff which could have been performed by a more junior attorney or
paralegal.”

(Def.’s Opp. at 10.)

Specifically, it argues that

one NSB associate—-Torti—-performed tasks that could have been
assigned to a paralegal, such as “cite-checking cases, compiling
prior briefing, preparing exhibits, making phone calls, speaking
with

printers

on

preparing

appendix,

and

editing

documents.”

(Langone Decl. ¶ 17.) The Court does not share Defendant’s concern
in this regard.

Some of the tasks listed are ones that require

the attention of an attorney, and, in light of the fact that Torti
was a junior associate, the time spent on these activities was not
unreasonable. In the absence of other specific examples, the Court
declines to reduce the fee award on this basis.
Finally, Defendant argues that NSB has not offered any
justification for the hours requested for outside lawyers Goldberg
and Friedman.

(Def.’s Opp. at 10.)

For example, Defendant points

out that while Friedman was working on Plaintiffs’ reply brief,
attorneys from NSB spent an excessive number of hours working on
the same reply brief.

(Def.’s Opp. at 10.)

The Court is not

convinced that a reduction is warranted for this reason.
15

Because

Friedman was collaborating with NSB attorneys on this project, it
is not surprising that both Friedman and NSB attorneys were working
on the brief at the same time.
B.

Excessive Hours
Defendant

argues

that

the

argument preparation was excessive. 4
Decl. ¶ 11.)

136

hours

spent

on

oral

(Def.’s Opp. at 11; Langone

According to Defendant’s analysis, Hoffmann spent

87.3 hours preparing for oral argument, including moot sessions,
while the remaining hours were split between Torti, Brustin,
Lampert, Neufeld, and outside attorney Goldberg. (Coded Fee Chart,
Docket Entry 307-1, at 1.)

Further, the time records show that

Hoffmann, who argued the appeal, spent approximately three weeks
preparing and received minor assistance from the other attorneys.
Defendant concludes that “spending that much time in preparation
for what was scheduled to be an eight-minute oral argument was
clearly excessive.”

(Langone Decl. ¶ 11.)

The Court disagrees.

Defendant cannot have it both ways; it chose to file an oversize

4

Defendant reviewed NSB’s time entries and assigned an activity
code to each entry in order to determine the number of hours
spent by NSB and outside attorneys on particular tasks. (See
Langone Decl. ¶¶ 8-9.) They organized the time entries into
thirteen categories, including tasks such as meetings, various
motions, and preparation for oral argument on the appeal. (See
Langone Decl. ¶ 9.) While the Court has concerns about the
accuracy of Defendant’s analysis, see infra n.6, for the purpose
of responding to Defendant’s arguments, the Court will assume
that the figures calculated by Defendant are accurate unless
otherwise stated.
16

brief with eight separate grounds for the appeal, and as a result,
NSB had to expend the time necessary to prepare for an oral
argument that might involve any combination of those issues.

In

light of the complexity of this case and the breadth of the appeal,
the Court does not find these hours to be unreasonable.
Defendant also contends that the 107 hours sought in
connection with work on the fee applications should be reduced. 5
(Def.’s Opp. at 11; Langone Decl. ¶¶ 20-22.)

Defendant does not

dispute that NSB is entitled to attorneys’ fees for this work;
rather, it argues that the request is unreasonable because “NSB
assigned a senior associate, a junior associate, and two paralegals
to these tasks” and also engaged Friedman, an outside attorney, to
assist in the fee litigation.

(Langone Decl. ¶ 20.)

Defendant

also suggests that the hours expended “strongly suggests that its
billing was not contemporaneous with the work that was done.”
(Langone Decl. ¶ 21.)

The Court disagrees.

In connection with

the attorneys’ fees motions, NSB had to compile and review its
time entries for the relevant periods, draft affidavits and respond
to Defendant’s objections to the requested fees.
Defendant

made

a

variety

of

objections

to

Unsurprisingly,
the

application, which led to additional work for NSB.

5

initial

fee

(See Def.’s

Defendant represents that this figure includes work on the
reply brief in further support of NSB’s initial fee application
and preparing the supplemental fee application under
consideration here. (Def.’s Opp. at 11.)
17

2015 Opp., Docket Entry 241.)
declines

to

reduce

the

For these reasons, the Court

hours

spent

on

the

attorneys’

fee

applications.
C.

Hours Spent on NSB Retainer
Defendant argues that the eight hours spent on NSB’s

retainer should be disallowed because this time is non-compensable
administrative work.

(Langone Decl. ¶ 19.)

The Court disagrees.

A retainer agreement is a binding and enforceable contract, and
accordingly, drafting or editing such an agreement constitutes
legal work.

See Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 67

(2d Cir. 2000) (“Fee arrangements between an attorney and client
are scrutinized with particular care, and an attorney who has
drafted a retainer agreement ordinarily has the burden of showing
that

the

contract

was

fair,

understood by the client.”).

reasonable,

and

fully

known

and

Moreover, Defendant fails to point

to any authority to support this reduction.

There is no basis to

exclude these hours from the fee award.
D.

Hours Spent on Enforcement Efforts
As

detailed

above,

this

case

involved

complex

enforcement issues and substantial post-judgment motion practice.
(See supra 5-8.)

Defendant argues that the Court should not award

fees for the hours expended on enforcing the Judgment, including
the hours related to the contempt proceedings, because these
enforcement efforts were directed at the County, not the Estate.
18

(Def.’s Opp. at 12-13.)

Defendant points out that the Court

granted Plaintiffs leave to file a separate motion for attorneys’
fees in connection with the contempt proceedings, which further
supports the notion that fees should be separately awarded against
the County for those hours.

(Def.’s Opp. at 12-13.)

As such,

Defendant requests that the Court “reserve ruling on the fees
relating to the indemnity issue until a later time to allow Nassau
County to respond.”

(Def.’s Opp. at 13.)

According to Defendant’s analysis, NSB spent 309 hours
on these efforts.

(Langone Decl. ¶ 14.)

tasks are included in this estimate. 6

It is not clear what

Nonetheless, based on the

Court’s review of the time records, it appears that Defendant is
requesting that the Court strike the hours spent on the following
tasks: (1) Plaintiffs’ opposition to Defendant’s motion to stay
enforcement of the Judgment filed in 2015, (2) Plaintiffs’ Order
to Show Cause for entry of judgment directly against the County,
and (3) Plaintiffs’ contempt motion, which sought to remove the
stay of enforcement of the Judgment.

(See Coded Time Entries at

9-12.)

6

The estimate is also inaccurate. For example, Defendant’s
analysis shows that Hoffmann spent 99.5 hours on the contempt
motion and related efforts. (Coded Fee Chart at 1.) However,
Hoffmann’s time entries for this activity code total
approximately 60.9 hours. (Coded Time Entries, Docket Entry
306-2, at 9.)
19

Plaintiffs respond that the Court should award fees for
this work because: (1) “the contempt motion was brought as part of
the present action to enforce the judgment against the [E]state,”
and (2) “because Nassau County will be paying any judgment against
Volpe’s estate--including attorneys’ fees--there is no meaningful
difference

in

interest

between

Plaintiffs’ contempt motion.”

the

parties

with

respect

to

(Pls.’ Reply, Docket Entry 311, at

5, n.2 (emphasis omitted).)
The Court has been unable to locate cases involving
similar facts, and the parties have cited none.

However, for the

reasons that follow, the Court will award attorneys’ fees for the
hours spent enforcing the Judgment, including the proceedings
primarily

involving

the

County.

First,

under

Section

1988,

Plaintiffs “‘may recover fees in connection with enforcement of a
judgment.’”

De Curtis v. Upward Bound Int’l Inc., No. 09-CV-5378,

2015 WL 5254767, at *2 (S.D.N.Y. Aug. 28, 2015) (quoting Diaz v.
Paragon Motors of Woodside, Inc., No. 03-CV-6466, 2008 WL 2004001,
at *7 (E.D.N.Y. May 7, 2008)); see also Hines v. City of Albany,
No. 06-CV-1517, 2015 WL 12828107, at * 1 (N.D.N.Y. May 13, 2015).
Further, the Court may award fees incurred in connection with a
contempt motion under section 1988. 7

7

See Joel, 1997 WL 543091, at

Defendant’s argument that the Court should address the fees
incurred during the enforcement proceedings at a later time is
unavailing. At the hearing on the contempt motion, the Court
granted Plaintiffs leave to file a motion for attorneys’ fees
20

*2 (awarding attorneys’ fees pursuant to Section 1988 for contempt
motion regarding a settlement agreement).

Second, because the

County is indemnifying the Estate for the full amount of the
Judgment, including attorneys’ fees, the enforcement proceedings
against the County were necessary to enforce the Judgment against
the Estate.
that

despite

After the Judgment was entered, the County indicated
its

prior

representations,

it

was

re-examining

whether it was required to indemnify the Estate, prompting the
first round of post-judgment motions and petitions.
Mot. to Stay, Docket Entry 243.)

(See Estate

Later, after the County agreed

to indemnify the Estate, Plaintiffs discovered that the County had
violated a Stipulation and Consent Decree and filed the contempt
motion.

(See Contempt Mot., Docket Entry 295.)

Having presided

over this matter since its inception, including during the postjudgment proceedings, the Court finds that the work performed by
NSB during this phase of the case was undoubtedly necessary to
enforce the Judgment against the Estate, particularly in light of
the County’s intransigence.

To the extent that the County’s

litigation strategy resulted in additional litigation and fees,

incurred in connection with the contempt motion, along with the
necessary documentation. (See Feb. 23, 2017 Minute Order,
Docket Entry 304.) At that time, the Court was unaware that NSB
requested those fees in this motion. Because the Court may
properly award such fees under Section 1988, there is no reason
to separately address them or further delay resolution of this
matter. See Joel v. Vill. of Kiryas Joel, No. 95-CV-8378, 1997
WL 543091, at *2 (S.D.N.Y. Sept. 4, 1997).
21

the County will shoulder that burden.

Third, the Court sees no

reason to prolong this matter to allow the County to respond to
this application. The County would likely raise similar objections
to NSB’s requested fee, and the County has not requested leave to
file a response.

Therefore, the Court will not deduct the hours

spent on enforcement proceedings.
IV.

Percentage Reduction
Nevertheless, based on the Court’s review of all of NSB’s

time entries, the Court agrees with Defendant that there is a small
amount of duplicative and excessive hours.

Therefore, the Court

will exercise its discretion and reduce the requested fee by five
percent, or $28,735.75, to account for those hours.

See Mary Jo

C. v. Dinapoli, No. 09-CV-5635, 2014 WL 7334863, at *10 (E.D.N.Y.
Dec. 18, 2014) (“In reducing the amount of attorney’s fees, the
court may exclude the excessive and unreasonable hours from its
calculation by making an across-the-board reduction, or percentage
cut, in the amount of hours.”).
V.

Costs Incurred by NSB
NSB also requests $21,410.01 in costs for copying and

duplication, printing, transcripts, and research expenses.

(Supp.

Fee Mot. at 3-4; Brustin Decl., Docket Entry 300-2, ¶¶ 7-18.)
Defendant has not objected to these expenses, and the Court finds
them to be reasonable.

Accordingly, the Court will award NSB

$21,410.01 in costs.
22

VI.

Fees and Costs Incurred by Anderson Kill P.C.
Defendant objects to the $40,692.60 billed to NSB by

Anderson Kill P.C. (“Anderson Kill”) in connection with Anderson
Kill’s work during the enforcement proceedings.
20-21.)

(Def.’s Opp. at

Defendant argues that NSB has not justified the hourly

rates sought by Anderson Kill or provided sufficient background
information about several Anderson Kill attorneys.
at 20.)
its

(Def.’s Opp.

Plaintiffs respond that because Anderson Kill “billed at

customary

reasonable.”

rates

.

.

.

these

rates

are

presumptively

(Pls.’ Reply at 4.)

When

determining

reasonable

hourly

rates,

the

Court

looks to “market rates ‘prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience,
and reputation.’”

Gierlinger, 160 F.3d at 882 (quoting Blum v.

Stenson, 465 U.S. 886, 895 n.11, 104 S. Ct. 1541, 1547, 79 L. Ed.
2d 891 (1984)).

For work performed in 2015, NSB seeks the

following rates for Anderson Kill attorneys: (1) $695.00 for
Partner Jeffrey Glen; (2) $725.00 for Partner David Graff; (3)
$415.00 for Associate Rachael Kierych; (4) $295.00 for Associate
Christopher

Paolino;

(5)

$295.00

for

Associate

Ethan

W.

Middlebrooks; and (6) $495.00 for Associate Christopher Ayers.
(Graff Decl., Docket Entry 300-8, at 11.)

For work performed in

2016, NSB seeks the following rates for Anderson Kill attorneys:
(1) $695.00 for Partner Jeffrey Glen; (2) $750.00 for Partner David
23

Graff; (3) $450.00 for Associate Rachael Kierych; (4) $295.00 for
Associate Christopher Paolino; (5) $295.00 for Associate Ethan W.
Middlebrooks; (6) $520.00 for Associate Christopher Ayers; and (7)
$245.00 for Law Clerk Alexander Haberman.

(Graff Decl. at 11.)

According to Anderson Kill, “[t]hese are ‘market rates’-- rates
that lawyers at Anderson Kill P.C. regularly charge to paying
clients.”

(Graff Decl. ¶ 12.)

They represent that these rates

are “regularly paid by our clients and are equivalent to or less
than the going market rate for attorneys practicing in New York
City.”

(Graff Decl. ¶ 12.)

Based on these representations, and

the fact that Anderson Kill is located in the Southern District of
New York, it appears that NSB is requesting that the Court award
hourly rates prevailing in the Southern District for the work
performed by Anderson Kill.
“[W]hen faced with a request for an award of higher outof-district rates, a district court must first apply a presumption
in favor of application of the forum rule.”

Simmons v. N.Y. City

Transit Auth., 575 F.3d 170, 175-76 (2d Cir. 2009).

To overcome

the presumption, “a litigant must persuasively establish that a
reasonable
because

client

doing

so

would

have

selected

would

likely

(not

substantially better net result.”

out-of-district

just

possibly)

Id. at 175.

counsel

produce

a

The Second Circuit

explained in Simmons that “[t]he party seeking the award must make
a particularized showing, not only that the selection of out-of24

district counsel was predicated on experience-based, objective
factors, but also of the likelihood that use of in-district counsel
would produce a substantially inferior result.”

Id. at 176.

“Among the objective factors that may be pertinent is counsel’s
special expertise in litigating the particular type of case, if
the case is of such nature as to benefit from special expertise.”
Id. at 175-76.
The Court finds that NSB has failed to demonstrate that
Anderson Kill should be compensated at Southern District rates.
Although David Graff (“Graff”), a partner at Anderson Kill, has
expertise in enforcing judgments, NSB and Anderson Kill have not
shown that retaining Anderson Kill led to a substantially better
result or that retaining counsel in this district would have led
to diminished success.

The Court recognizes that Anderson Kill’s

work was necessary and that Anderson Kill assisted in achieving a
favorable result for Plaintiffs.

However, the Court finds that

awarding hourly rates prevailing in this district is appropriate
here.
In this district, courts typically award hourly rates of
$300.00 to $450.00 for partners, $200.00 to $325.00 for senior and
mid-level associates and $100.00 to $200.00 for junior associates.
Dinapoli, 2014 WL 7334863, at *5; Small v. N.Y.C. Transit Auth.,
No. 03-CV-2139, 2014 WL 1236619, at *5 (E.D.N.Y. Mar. 25, 2014);
Struthers v. City of N.Y., No. 12-CV-0242, 2013 WL 5407221, at *7
25

(E.D.N.Y. Sept. 25, 2013).

Despite the fact that the attorneys’

qualifications and experience are important considerations, NSB
and

Anderson

experience.

Kill

have

only

provided

information

on

Graff’s

(See Graff Decl. ¶¶ 1-6; Graff Decl. Ex. A.)

The

Court has not been provided with any information about the six
other attorneys involved in the case.
However, the Court has located a recent decision from
the Southern District in which Anderson Kill was awarded attorneys’
fees in connection with a commercial dispute.

See Euro Pac.

Capital, Inc. v. U.S. China Mining Grp., Inc., No. 15-CV-4636,
2017 WL 89023 (S.D.N.Y. Dec. 15, 2016), R&R adopted, Euro Pac.
Capital, Inc. v. U.S. China Mining Grp., Inc., 15-CV-4636, Docket
Entry 50 (S.D.N.Y. Jan. 10, 2017).

In that case, Anderson Kill

requested and was awarded the following hourly rates: (1) $375.00
for David Graff; (2) $250.00 for Associate Christopher Ayers; (3)
$250.00 for Associate Christopher Paolino; and (4) $250.00 for
Associate Rachael Kierych.

Euro Pacific, 2017 WL 89023, at *6.

The Court finds this case to be instructive. 8

While this is a

civil rights matter, Anderson Kill’s work focused exclusively on
enforcing the Judgment, and the work performed is similar to what

8

Although these rates were awarded based on the prevailing rates
in the Southern District, they also fall within the permissible
range of hourly rates in this district.
26

would be required to enforce any judgment—-whether it arose out of
a commercial dispute or otherwise.
Therefore, the Court finds that the following rates are
reasonable: (1) $375.00 for Partner Jeffrey Glen; (2) $375.00 for
Partner David Graff; (3) $250.00 for Associate Rachael Kierych;
(4) $250.00 for Associate Christopher Paolino; (5) $250.00 for
Associate Ethan W. Middlebrooks; and (6) $250.00 for Associate
Christopher Ayers.
reasonable

hourly

The Court further finds that $125.00 is a
rate

for

Anderson

Kill’s

law

clerk.

See

D’Annunzio v. Ayken, Inc., No. 11-CV-3303, 2015 WL 5308094, at *5
(E.D.N.Y. Sept. 10, 2015) (awarding $125 for law clerk).

Applying

these hourly rates, NSB is awarded the following for work performed
by Anderson Kill 9:
NAME
Jeffrey Glen

HOURLY
RATE
$375.00

HOURS
WORKED
3.00

$1,125.00

David Graff

$375.00

16.6

$6,225.00

Rachael Kierych

$250.00

4.2

$1,050.00

Christopher Paolino

$250.00

10.78

$2,695.00

Ethan W. Middlebrooks

$250.00

44.6

$11,150.00

Christopher Ayers

$250.00

15.9

$3,975.00

9

TOTAL

Defendant has not objected to the hours expended by Anderson
Kill. Based on the Court’s review of the time entries, there is
no basis for a reduction. As a result, the Court will multiply
the hours requested by the reduced hourly rates to compute the
final award. (See Graff Decl. at 11.)
27

Alexander Haberman

$125.00

1.00

$125.00

TOTAL FEES:

$26,345.00

Because there has been no objection to Anderson Kill’s
request for legal research costs, the Court awards an additional
$396.53 in costs. 10

(See Graff Decl. at 11.)

Therefore, the total

award for Anderson Kill’s work is $26,741.53.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

10

Anderson Kill provided a breakdown of the research costs to
support this request. (See Graff Decl. at 21.)
28

CONCLUSION
For the foregoing reasons, NSB’s supplemental motion for
attorneys’ fees (Docket Entry 300) is GRANTED IN PART and DENIED
IN

PART.

The

Court

awards

attorney

fees

in

the

amount

of

$572,324.25 11 plus $21,806.54 12 in costs for a total of $594,130.79
in attorney fees and costs.

The Clerk of the Court is directed to

enter judgment for $594,130.79 in attorneys’ fees and costs. Postjudgment interest, calculated pursuant to 28 U.S.C. § 1961(a),
shall run on the award of attorney fees and costs from the date of
this Memorandum & Order until the date the fees and costs are paid.

SO ORDERED.

/s/ JOANNA SEYBERT___
_
Joanna Seybert, U.S.D.J.

DATED:

August 28 , 2017
Central Islip, New York

11

This includes $545,979.25 for NSB’s work and $26,345.00 for
Anderson Kill’s work.
12

This includes $21,410.01 in costs incurred by NSB and $396.53
incurred by Anderson Kill.
29