Restivo et al v. Nassau County et al

Filing 334

MEMORANDUM & ORDER granting in part and denying in part 332 Motion for Attorney Fees; For the reasons set forth herein, NSB's application for attorneys' fees and costs is GRANTED IN PART and DENIED IN PART. The Court awards $114, 135.00 in attorneys' fees plus $1,483.95 in costs for a total of $115,618.95 in attorneys' fees and costs. The Clerk of the Court is directed to enter judgment for $115,618.95 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. So Ordered by Judge Joanna Seybert on 1/4/2019. C/ECF (Valle, Christine)

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.,

Defendants.
------------------------------------X
APPEARANCES
For Plaintiffs:
Barry C. Scheck, Esq.
Alexandra Lynn Lampert, 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, Florida 33301
David Graff, Esq.
Rachael Ann Kierych, Esq.
Anderson Kill & Olick PC
1251 Avenue of The Americas, 42nd Fl.
New York, New York 10020
Leon Friedman, Esq.
148 E. 78th St.
New York, New York 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, New York 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, New York 11530
Thomas J. McNamara, Esq.
Certilman, Balin, Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
SEYBERT, District Judge:
Currently pending before the Court is Neufeld Scheck &
Brustin LLP’s (“NSB”) supplemental motion for attorneys’ fees and
costs.

(Supp. Fee Motion, Docket Entry 332.)

For the reasons

that follow, the motion is GRANTED IN PART and DENIED IN PART.
NSB is awarded $115,618.95 in fees and costs for its additional
post-judgment work on this matter.

2

BACKGROUND1
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
for its work from the filing of the case in 2006 to the entry of
judgment in 2014 (Restivo v. Nassau County, No. 06-CV-6720, 2015
WL

7734100

(E.D.N.Y.

Nov.

30,

2015)

(“Restivo

1”))2

and

its

August 28, 2017 Order awarding NSB $594,130.79 in supplemental
fees and costs for its work on the Second Circuit appeal and
various post-judgment proceedings (Restivo v. Nassau County, 2017
WL 3727366 (E.D.N.Y. Aug. 28, 2017) (“Restivo 2”)).
NSB now seeks an additional award of fees and costs for
its work since 2017 to enforce the judgment and oppose Defendants’
petition for certiorari to the United States Supreme Court. (Supp.
Fee Mot. at 2.)

NSB calculates that it has incurred $115,649.12

in fees and costs performing this work.3

1

(Supp. Fee Mot. at 3;

The Court summarizes only the facts relevant to this motion.

The Second Circuit affirmed the hourly rates approved in
Restivo 1. Restivo v. Hessemann, 846 F.3d 547, 592 (2d Cir.
2017).
2

On page 3 of its motion, NSB states that it incurred
$116,846.15 in fees. This appears to be an error, as the broken
down fees come to a total of $115,649.12, and that is the total
amount noted everywhere else, including a follow up letter from
NSB.
3

3

Letter Re: Fee Appl., Docket Entry 333.)

Defendants have not

opposed NSB’s request.
Subsequent to this Court’s last award of fees and costs,
Defendants sought certiorari from the United States Supreme Court,
which was denied.

(Hoffmann Decl., Docket Entry 332-6, ¶ 13; see

Hessemann v. Restivo, 138 S. Ct. 644, 199 L. Ed. 2d 528 (2018).)
Defendants’ petition raised three issues that NSB was required to
brief in opposition.

(Hoffmann Decl. ¶ 13.)

NSB, with assistance

from outside firm Anderson Kill P.C. (“Anderson”), also worked to
have the judgment enforced.

They researched Nassau County’s

ability to pay, prepared for and conducted a contempt hearing (see
February 23, 2017 Minute Order for Contempt Hearing, Docket Entry
304), and reviewed the County’s compliance with the contempt order.
NSB seeks compensation for the work of nine attorneys
who worked on these matters.

NSB requests the same hourly rates

already approved in this Court’s prior Orders for three NSB
attorneys addressed in those Orders--for Nick Brustin (“Brustin”),
$600; for Anna Benvenutti Hoffmann (“Hoffmann”), $500; and for
David Goldberg (“Goldberg”), $650. See Restivo 1, at *2 (approving
rates); Restivo 2, at *4 (approving and reapproving rates).
NSB seeks $175 an hour for Mary McCarthy (“McCarthy”),
who worked on this matter as a law clerk pending her admission to
the bar.

She states she had comparable experience to Elizabeth

Daniel Vasquez (“Vasquez”), a prior attorney for whom this Court
4

approved $175 an hour as a law clerk pending admission.
Decl., Docket Entry 332-8, ¶ 5.)
another

NSB

associate,

also

(McCarthy

Richard Sawyer (“Sawyer”),

states

that

he

had

comparable

experience to Vasquez, and NSB seeks her approved hourly rate as
an associate--$250--for him.

(Sawyer Decl., Docket Entry 332-11,

¶ 4.)4
Four

attorneys

from

Anderson

worked

on

the

present

matter, primarily seeking to have the judgment enforced. Attorneys
from Anderson had their requested rates approved in Restivo 2:
partner David Graff (“Graff”) at $375, and three associates at
$250 each.

See Restivo 2, at *9.

They request the same amounts

here for Graff and the three associates.
NSB

also

requests

copying, and printing.
6.)

$1,381.06

in

costs

for

research,

(Brustin Decl., Docket Entry 332-1, at 4-

Anderson requests $133.06 in costs.

(Graff Decl., Ex. B,

Docket Entry 332-18.)
DISCUSSION
I.

Attorneys’ Fees in Section 1983 Cases
As this Court recognized in its prior Fee Orders, Section

1988(b) empowers the Court to award reasonable attorney fees to

Over the years, Vasquez worked on the case as a paralegal, a
law clerk not yet admitted to the bar, and an associate. NSB
requested different fees reflecting her changing level of
experience. (see Letter Mot. to Amend, Docket Entry 240.)
4

5

the prevailing party in a Section 1983 action.
§ 1988.

See 42 U.S.C.

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 by a
reasonable

hourly

rate

for

attorneys

and

paraprofessionals.”

Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992); 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,

presumptively appropriate”).

i.e.,

the

lodestar

figure,

is

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)).
Courts have awarded attorneys’ fees in connection with
opposing

Supreme

Court

certiorari

petitions.

See

Patrolmen’s

Benovelent Assoc. of City of N.Y. v. City of N.Y., No. 97-CV-7895,
2003 WL 21782675, at *4 (S.D.N.Y. July 31, 2003) (“[I]t was
defendants’ decision to petition the Supreme Court for certiorari
that

caused

these

additional

hours

to

be

expended.

Surely,

defendants cannot complain of the number of hours plaintiffs were
required to spend to respond to defendants’ motions.”); see also
Dague v. City of Burlington, 976 F.2d 801, 803-04 (2d Cir. 1991)
6

(“Perhaps

most

significantly,

the

Supreme

Court

itself

has

confirmed the district court’s authority to award attorney’s fees
for work done before the Supreme Court, by instructing that the
amount of the award for such services be fixed in the first
instance by the district court, after the district court hears
evidence as to the extent and nature of the services rendered.”)
(citing Perkins v. Standard Oil Co., 399 U.S. 222, 223, 90 S. Ct.
1989, 1990, 26 L. Ed. 2d 534 (1970) (per curiam)).
Further, 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)), and the Court
may award fees incurred in connection with a contempt motion

(see

Joel v. Vill. of Kiryas Joel, No. 95-CV-8378, 1997 WL 543091, at
*2 (S.D.N.Y. Sept. 4, 1997) (awarding attorneys’ fees pursuant to
Section

1988

for

contempt

motion

regarding

a

settlement

agreement)).
II.

Reasonable Hourly Rate
This 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
7

rather than the Eastern District of New York.

Restivo 1, at *3.

In Restivo 2, the Court rejected Defendants’ argument that NSB
should not be awarded the same rates for appellate litigation or
post-judgment enforcement.

Restivo 2, at *3-4.

Specifically, in

Restivo 1, the Court approved $600 for Brustin, $500 for Hoffmann,
and $175 for a law clerk pending admission.
n.1,

n.7.

Restivo 2,

The
at

Court

*3-4.

reapproved

these

The

also

Court

Restivo 1, at *2-3;
rates

in

previously

Restivo
found

2.

that

“Goldberg’s experience and expertise in appellate practice is
undisputed, and . . . an hourly rate of $650 is reasonable for his
work on the case.”
rates).

Restivo 2, at *4 (citing cases with comparable

“Because the Court previously approved these rates [for

Brustin, Hoffmann, a law clerk, and Goldberg], and there is no
reason to revisit the appropriate hourly rates for these attorneys
. . . the Court will use these rates to calculate the fee award
[for this motion].”

Restivo 2, at *4.5

As to the Anderson attorneys, this Court also previously
approved the rates requested in connection with enforcing the

The Court notes that NSB does not seek higher hourly fees due
to market rate increases in the three years since their last
application. Hoffmann and Sawyer also billed half their hourly
rates for travel (Hoffmann at $250, Sawyer at $125). (See
Hoffmann Decl. Ex. 2-A, Docket Entry 332-7; Sawyer Decl. Ex. 4B, Docket Entry 332-13.) Further, Graff’s standard hourly rate
is $900, and he requests only the previously approved $375.
(Graff Decl., Docket Entry 332-16, ¶ 10.)
5

8

judgment.

The Court finds they remain reasonable, and will use

them to calculate the fee award for the present motion.
III. Hours Expended
In connection with the present motion, Brustin worked
12.5 hours (Brustin Decl. Ex. 1-A, Docket Entry 332-2); Hoffmann
worked 97.9 hours (Hoffmann Decl. Ex. 2-A); McCarthy worked 51.5
hours (McCarthy Decl. Ex. 3-B, Docket Entry 332-10); Sawyer worked
92.1 hours (Sawyer Decl. Ex. 4-B); Goldberg worked 22.9 hours
(Goldberg Decl. Ex. 5-A, Docket Entry 332-15); Anderson partner
Graff worked 13 hours (Graff Decl. Ex. B, at 4); and Anderson
Associates Ethan W. Middlebrooks worked 14.5 hours (Graff Decl.
Ex. B, at 1-2); Alexander Litt worked 2.6 hours (Graff Decl. Ex. B
at 2); and Christopher Ayers worked 9 hours (Graff Decl. Ex. B
at 2).

The Court has reviewed the individual time logs of each

attorney, detailing hours spent on various tasks, and finds them
to be reasonable.

The Court again notes that all requests are

unopposed.
IV.

Costs
NSB also requests $362.43 for Westlaw expenses, $222.10

for copier expenses, and $796.53 for appellate printing expenses
(a total of $1,381.06).

(Brustin Decl. at 4-6.)

The Court finds

these expenses reasonable, and accordingly, awards NSB $1,381.06
in costs.

9

Anderson submits $133.06 in costs for meals and research
(Graff Decl. Ex. B, at 4), which is included in NSB’s breakdown
under “Anderson Kill Legal Consulting” (Supp. Fee Mot. at 3).
“However, ‘meals that are not required by out-of-town travel are
not compensable.’”

Cardeno v. Potter, No. 05-CV-4735, 2010 WL

11607057, at *4 (E.D.N.Y. Aug. 5, 2010) (quoting Lucky Brand
Dungarees, Inc. v. Ally Apparel Resources, LLC, No. 05-CV-6757,
2009 WL 466136, at * 6 (S.D.N.Y. Feb. 25, 2009)).

As Anderson’s

submissions indicate “meals in office,” (Graff Decl. Ex. B at 4),
the Court will not award $30.17 for meals.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

10

CONCLUSION
NSB’s

application

for

attorneys’

GRANTED IN PART and DENIED IN PART.
in

attorneys’

fees

plus

fees

and

costs

is

The Court awards $114,135.00

$1,483.95

in

$115,618.956 in attorneys’ fees and costs.

costs

for

a

total

of

The Clerk of the Court

is directed to enter judgment for $115,618.95 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.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:

January
4 , 2019
Central Islip, New York

This figure represents all requested fees and costs less
Anderson’s $30.17 request for meals.
6

11