Gray et al v. Toyota Motor Sales, U.S.A., Inc. et al

Filing 56

MEMORANDUM & ORDER re: 52 and 53 Motions for Leave to File are GRANTED. Defendant's Motion 46 for Attorney Fees is GRANTED IN PART. (See Order for details.) Ordered by Judge Joanna Seybert on 7/16/2013. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
WILLIAM S. GRAY, AUTO PARTNERS,
LLC, SUNRISE AUTOMOTIVE, LLC d/b/a
SUNRISE TOYOTA & SUNRISE SCION,
Plaintiffs,

MEMORANDUM & ORDER
10-CV-3081(JS)(ETB)

-againstTOYOTA MOTOR SALES, U.S.A., INC.,

Defendant.
----------------------------------------X
APPEARANCES
For Plaintiffs:
David A. Rosenfeld, Esq.
Joseph Russello, Esq.
Samuel H. Rudman, Esq.
Robbins Geller Rudman & Dowd LLP
58 South Service Road, Suite 200
Melville, NY 11747
Jonathan Paul Whitcomb, Esq.
Diserio Martin O’Connor & Castiglioni LLP
One Atlantic Street, 8th Floor
Stamford, CT 06901
Scott M. Harrington, Esq.
Diserio Martin O’Connor & Castiglioni LLP
50 Main Street, Suite 1000
White Plains, NY 10606
For Defendant:

Carl J. Chiappa, Esq.
Nathaniel S. Boyer, Esq.
Hogan Lovells US LLP
875 Third Avenue
New York, NY 10022

SEYBERT, District Judge:
Currently pending before the Court is Defendant Toyota
Motor Sales’ (“Defendant” or “TMS”) motion for attorneys’ fees,
costs,

and

disbursements

(See

Docket

Entries

46

&

47).

In

connection with this motion, Defendant also moved for leave to
file a reply memorandum of law (Docket Entry 52) and Plaintiffs
William S. Gray (“Gray”), Auto Partners, LLC (“Auto Partners”),
and Sunrise Automotive, LLC d/b/a Sunrise Toyota and Sunrise
Scion (“Sunrise” and collectively, “Plaintiffs”) moved for leave
to file a sur-reply (Docket Entry 53).
the

parties’

accordingly,

briefs,
those

including

motions

The Court has considered

the

are

reply

and
For

GRANTED.

sur-reply
the

and

following

reasons, Defendant’s motion for attorneys’ fees is GRANTED IN
PART.
BACKGROUND
The Court presumes familiarity with the facts of this
case,

which

Memorandum

are

and

detailed

Order

in

granting

the

Court’s

Defendant’s

August

motion

to

25,

2011

dismiss.

See Gray v. Toyota Motor Sales, U.S.A., Inc., 806 F. Supp. 2d
619 (E.D.N.Y. 2011).

Briefly, Plaintiffs were the owners and

operators of Sunrise, a franchised Toyota Dealer.
Plaintiffs

alleged

that

Defendant

unreasonably

At base,

withheld

its

consent to two prior sales, ultimately forcing Plaintiffs to
sell Sunrise for less than at least what one buyer was willing
to pay.
Plaintiffs asserted eight claims: (1) breach of the
Dealer Agreement between Sunrise and Defendant; (2) breach of
the

implied

covenant

of

good

faith
2

and

fair

dealing;

(3)

tortious interference with contract; (4) tortious interference
with

a

fraud;

prospective
(7)

economic

violation

of

advantage;

New

York’s

(5)

negligence;

Franchised

Motor

(6)

Vehicle

Dealer Act (the “Dealer Act”); and (8) violation of the Day in
Court Act.
Defendant
granted

its

moved

motion,

to

moved

dismiss,

for

disbursements (Docket Entry 33).
motion

on

September

Entry

45).

In

Defendant

moved

17,

the
to

2012

attorneys’

after
fees,

the

Court

costs,

and

The Court granted Defendant’s
(the

September
recover

and

its

“September

Order,

the

attorneys’

Order,”

Docket

Court

noted

that

fees

incurred

in

defending against Plaintiffs’ claims under the Dealer Act and in
defending against Plaintiffs’ seven other claims.
Order

at

attorneys’

2.)
fees

The

Court

under

the

went
Dealer

on

to

Act

hold
are

(September

that,

although

discretionary,

as

opposed to mandatory, Defendant here was entitled to attorneys’
fees.

(September Order at 2-4.)
DISCUSSION
Defendant now seeks $253,980.75 in attorneys’ fees and

$1,370.26 in costs.

These amounts represent Defendant’s fees in

defending against all of Plaintiffs’ claims.

The Court will

first address whether Defendant is entitled to fees in defending
against all of Plaintiffs’ claims or just regarding the Dealer

3

Act

only

before

turning

to

the

amount

of

fees

and

costs

requested.
I.

Plaintiffs’ Claims are Interrelated
Defendant seeks attorneys’ fees incurred in litigating

against all of Plaintiffs’ claims.

Although it acknowledges

that the Dealer Act provides the only authority for attorneys’
fees,

Defendant

asserts

that

Plaintiffs’

claims

were

so

interrelated that attorneys’ fees for the litigation as a whole
are appropriate.

The Court agrees.

The case law in this area is relatively sparse, and
the parties seem to agree that General Motors Corp. v. Villa
Marin Chevrolet, Inc., 240 F. Supp. 2d 182 (E.D.N.Y. 2002) is
particularly

instructive.

There,

General

Motors

Corporation

(“GM”) sought attorneys’ fees pursuant to the Dealer Act, while
Argonaut

sought

attorneys’

provision.

Id.,

principal

difficulty

awarded

in

this

at

fees

184-85.
in

action

pursuant

The

court

calculating
stems

from

the
the

to

a

contractual

noted

that

“[t]he

proper

fees

to

fact

that

the

be

state

statute upon which GM rests its fee request applies only to some
of the claims and counterclaims in the litigation.”

Id. at 185.

In order to sort out this difficulty, the court looked to the
principle, established by the Supreme Court, that where there
are

some

successful

claims,

and

other

unsuccessful

claims

distinct from those on which the party seeking attorneys’ fees
4

succeeded, the court should exclude the unsuccessful claims from
the lodestar analysis.

Id. at 187 (citing Hensley v. Eckerhart,

461 U.S. 424, 434-35, 103 S. Ct. 1933 (1983)).
Supreme

Court

held

that

where

the

claims

Conversely, the
are

interrelated

because they “involve a common core of facts” or are “based on
related legal theories,” fees should generally be awarded for
the litigation as a whole.

Hensley, 461 U.S. at 435.

Ultimately, though, the court in General Motors did
not

definitively

answer

whether

cases

involving

Dealer

Act

claims in addition to other claims would necessarily mean that
the

claims

voluntarily

were

interrelated.

proposed

their

court found reasonable.
190.

own

Rather,
reduction

the
in

parties

fees,

there

which

the

Gen. Motors Corp., 240 F. Supp. 2d at

In so holding, though, the court did find that the claims

were interrelated, and made a point to say that “a good argument
can be made that all of the reasonable fees and expenses charged
to both GM and Argonaut are potentially recoverable by both of
them because all of the claims in all of the actions, whether
they involve GM or Argonaut or both, are interrelated . . . .”
Id.
Here, a good argument can, and has been made, that the
claims

are

interrelated.

Initially,

the

Court

notes

that

Plaintiffs, not Defendant, chose to bring multiple causes of
action, several of which the Court determined were duplicative.
5

See Gray, 806 F. Supp. 2d at 624 (finding Plaintiffs’ claims for
breach

of

covenant

duplicative

of

of

their

good

breach

faith
of

and

faith

contract

dealing

claim);

id.

to
at

be
625

(finding Plaintiffs’ negligence claim to be “wholly premised on
a contractual duty”).
Plaintiffs’

Dealer

Moreover, the Court ultimately dismissed

Act

claims

in

part

based

upon

the

same

reasoning and analysis that it dismissed Plaintiffs’ breach of
contract

claim.

For

example,

the

Court

characterized

Plaintiffs’ breach of contract claim as “essentially [resting]
on arguments that Defendant’s considering the Proposed Dealers’
CSI [i.e., consumer satisfaction index] scores in determining
whether

to

bless

unreasonable
motive.”

or

the
(2)

proposed
a

Id. at 623.

sales

pretext

for

was
an

either

(1)

unspecified

per

se

ulterior

The Court went on to say that “[o]n the

first point, the Court rejects Plaintiffs’ bald assertion that a
CSI rating is not an acceptable reason to withhold consent.”
Id.
Section

Later,
466

when
of

the

addressing
Dealer

Plaintiffs’

Act,

the

Court

claim
stated

pursuant
that

to

“[a]s

discussed already, imposing a CSI threshold is not a per se
unreasonable restriction on a dealer’s right to transfer his
franchise

and,

without

more,

state a claim for relief.”

Plaintiffs’

allegations

do

not

Id. at 627.

Such analysis makes clear that Plaintiffs’ claims are
based upon a “common core of facts.”
6

All of Plaintiffs’ claims

essentially

pertain

to

Defendant’s

withholding

consent

to

particular sales due to the proposed purchaser’s CSI rating,
which Plaintiffs claim was a pretext.

See Fleming v. MaxMara

USA, Inc., No. 06-CV-6357, 2010 WL 1629705, at *12 (E.D.N.Y.
Apr. 21, 2010) (“I conclude that plaintiff’s claims here, while
premised on different grounds for relief, arise from a common
core of facts and are not so ‘distinctly different’ that an
award of attorneys’ fees to defendant would be warranted.”);
Tran v. Tran, 166 F. Supp. 2d 793, 803 (S.D.N.Y. 2001) (finding
that claims were interrelated because facts giving rise to all
of the claims were the same); Alnutt v. Cleary, 27 F. Supp. 2d
395,

403

(W.D.N.Y.

1995)

(“There

can

be

little

doubt

that

plaintiff’s claims involved a common core of facts and were
based on related legal theories and that much of counsel’s time
was devoted generally to the litigation as a whole” (internal
quotation marks and citation omitted)).

Accordingly, the claims

here are interrelated and Defendant is entitled to recover for
time spent on all of the claims.
II.

Amount of Attorneys Fees
“Attorney’s fees must be reasonable in terms of the

circumstances of the particular case . . . .”
Am.

World

Airways,

169

F.3d

99,

102

(2d

Alderman v. Pan
Cir.

1999).

In

determining what fees are “reasonable,” the Court should “first
calculate the ‘lodestar--the product of a reasonably hourly rate
7

and the reasonable number of hours required by the case,’ which
the Second Circuit calls the ‘presumptively reasonable fee.’”
Short

v.

Manhattan

Apartments,

Inc.,

286

F.R.D.

248,

255

(S.D.N.Y. 2012) (quoting Millea v. Metro-N. R.R. Co., 658 F.3d
154, 166 (2d Cir. 2011)).

This calculation “boils down to what

a reasonable, paying client would be willing to pay, given that
such a party wishes to spend the minimum necessary to litigate
the case effectively.”
F.3d

170,

174

(2d

citation omitted).

Simmons v. N.Y.C. Transit Auth., 575

Cir.

2009)

(internal

quotation

marks

and

“Because attorney’s fees are dependent on

the unique facts of each case, the resolution of this issue is
committed to the discretion of the district court.”

Clarke v.

Frank, 960 F.2d 1146, 1153 (2d Cir. 1992).
A.

Reasonable Hourly Rate
In determining the reasonable hourly rate, the Court

must

look

similar

to

those

services

rates

by

“prevailing

lawyers

experience, and reputation.”
111,

115

(2d

Cir.

1997)

of

in

reasonably

the

community

comparable

for

skill,

Luciano v. Olsten Corp., 109 F.3d

(internal

quotation

marks

omitted)

(quoting Blum v. Stenson, 465 U.S. 886, 896 n.11, 104 S. Ct.
1541, 79 L. Ed. 2d 891 (1984)).

The relevant “community” for

the purposes of this analysis is “the district in which the
court sits.”

Polk v. N.Y. State Dep’t of Corr. Servs., 722 F.2d

23, 25 (2d Cir. 1983).
8

Although this “forum rule” creates a presumption of
reasonableness, this presumption is rebuttable.

See Simmons,

575 F.3d at 173 (“According to the forum rule, courts ‘should
generally use the hourly rates employed in the district in which
the

reviewing

reasonable

court

fee.”

sits

in

(quoting

calculating

Arbor

Hill

the

presumptively

Concerned

Citizens

Neighborhood Ass’n v. Cnty. of Albany, 493 F.3d 110, 119, (2d
Cir. 2007)).

“In order to overcome that presumption, a litigant

must persuasively establish that a reasonable client would have
selected out-of-district counsel because doing so would likely
(not just possibly) produce a substantially better net result.”
Id. at 175.
has

Furthermore, “[i]n determining whether a litigant

established

consider

such

a

likelihood,

experience-based,

the

objective

“counsel’s special expertise.”

district

court

factors,”

such

must
as

Id. at 175-76.

Defendant argues that it has overcome the presumption
of

the

forum

because

“TMS

rule,

justifying

reasonably

higher,

determined

out-of-district

that

it

needed

rates,

to

hire

counsel with specialized expertise in motor vehicle franchise
law to defend this action.”

(Def.’s Mot. for Fees, Docket Entry

47, at 3 (citing Goldman Decl. ¶ 4 & Chiappa Aff. ¶¶ 25-28).)
The only evidence Defendant offers to rebut the forum rule is
in-house counsel’s understanding, based upon her experience in
the field, that there are few law firms that specialize in the
9

field of motor vehicle franchise law and that none of those
firms

have

offices

in

(Goldman Decl. ¶ 3.)
“The

the

Eastern

District

of

New

York.

This, however, is insufficient.

party

seeking

the

award

must

make

a

particularized showing, not only that the selection of out-ofdistrict counsel was predicated on experience-based, objective
factors, but also of the likelihood that use of in-district
counsel

would

Simmons,

575

produce
F.3d

substantially

176.

at

a

Although

inferior

Defendant

assertion, there is no evidence to support it.

result.”

makes

this

In cases where

the court has found the presumption rebutted, the party seeking
fees has offered proof such as unsuccessful efforts to find indistrict counsel.

See, e.g., Harvey v. Home Savers Consulting

Corp., No. 07-CV-2645, 2011 WL 4377839, at *4 (E.D.N.Y. Aug. 12,
2011)

(over

necessary

100

law

experience

firms
and

were

contacted,

resources

were

but

unable

those
to

with

serve

as

counsel); Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy &
Sauce Factory, Ltd., No. 07-CV-3208, 2010 WL 3925195, at *3
(E.D.N.Y. Sept. 9, 2010) (client affirmed that it had tried, and
failed,

to

find

in-district

counsel),

adopting

report

&

recommendation as modified 2010 WL 3924674 (E.D.N.Y. Sept. 30,
2010); c.f. Barkley v. United Homes, LLC, No. 04-CV-0875, 2012
WL 3095526, at *6 (E.D.N.Y. July 30, 2012) (“A mere citation to
a

recent

case

from

the

Eastern
10

District

of

New

York

and

a

statement that counsel in the Eastern District of New York could
not

be

located,

requirement

of

without
a

more,

does

‘particularized

not

satisfy

showing’

the

that

Simmons

in-district

counsel were unable or unwilling to help plaintiffs.”).

Here,

Defendant did not even attempt to find in-district counsel.
Likewise,

Defendant

has

not

made

a

particularized

showing that in-district counsel would produce a substantially
inferior result.

Barkley, 2012 WL 3095526, at *7 (plaintiffs

presented no specific evidence that in-district counsel would
have been inferior); Realsongs, Universal Music Corp. v. 3A N.
Park Ave. Rest Corp., 749 F. Supp. 2d 81, 90 (E.D.N.Y. 2010)
(“Plaintiffs

provide

no

specific

information

which

would

establish that local counsel with the requisite experience were
unwilling or unable to take the case, or alternatively, no indistrict

counsel

possessed

such

experience.”).

Thus,

even

though Defendant consented to the higher rates, the Court does
not find that the forum rule presumption has been rebutted.
Trudeau

v.

Bockstein,

No.

05-CV-1019,

2008

WL

3413903,

See
*6

(N.D.N.Y. Aug. 8, 2008) (the fact that client actually assented
to the rates is a consideration, but not dispositive).
Accordingly, the Court will award Defendant fees in
accordance with the forum rule.
of

New

York

have

determined

Courts in the Eastern District
reasonable

11

hourly

rates

to

be

“approximately $300-450 per hour for partners1, $200-300 per hour
for

senior

associates,

and

$100-200

per

hour

for

junior

associates.”

Hugee v. Kimso Apartments, L.L.C., 852 F. Supp. 2d

281,

(E.D.N.Y.

298-99

2012)

(internal

quotation

marks

and

citation omitted); accord Cadles of Grassy Meadows II, L.L.C. v.
St. Clair, No. 10-CV-1673, 2012 WL 6617448, at *2 (E.D.N.Y. Dec.
18, 2012).
Here, Defendant seeks fees for Carl Chiappa and John
Sullivan,
Group,

partners

Paul

litigation,
Michaeli.

Werner,
and

in

the

who

junior

Motor

was

a

Vehicle

senior

associates

Franchise

associate

Nathaniel

Practice

during

Boyer

and

this
David

Mr. Chiappa graduated from New York University School

of Law in 1978 and has been practicing in the area of automobile
franchise for over 30 years.

(Chiappa Aff. ¶ 15.)

Mr. Sullivan

is a 1980 graduate of New York University School of Law and “has
worked on dozens of motor vehicle franchise cases over the past
15 years.”
associate,

(Chiappa Aff. ¶ 21.)
who

has

since

become

Mr. Werner was a senior

partner,

who

graduated

from

Defendant offers some case law finding rates as high as $480
per hour for partners. (Def.’s Mot. for Fees at 5 (citing
Libaire v. Kaplan, No. 06-CV-1500, 2011 WL 7114006, at *3
(E.D.N.Y. June 17, 2011).) This Court, though, has generally
held $450 an hour to be at the top of the range, absent
considerations not present here. See Cuevas v. Ruby Enters. of
N.Y., Inc., No. 10-CV-5257, 2013 WL 3057715, at *2 (E.D.N.Y.
June 17, 2013) (JS)(WDW); Cadles of Grassy Meadows II, L.L.C.,
2012 WL 6617448, at *2; see also Gen. Motors, 240 F. Supp. 2d at
188 (awarding partners rates of $315 at the beginning of the
case and $375 at the end of the case).
1

12

Vanderbilt University Law School in 2002.

(Chiappa Aff. ¶ 17.)

Mr. Boyer and Mr. Michaeli are junior associates who graduated
from Benjamin N. Cardozo School of Law and Columbia Law School,
respectively, in 2009.

(Chiappa Aff. ¶¶ 18, 23.)

Although the Court has declined to apply higher outof-district
Defendant’s

rates,

counsels’

relationship

with

experience
counsel

and

in
the

the

field

firm

and

justifies

rates at the high end of what courts in this district have
awarded.

See

Barkley,

2012

WL

3095526

at

*7

(“Given

the

extensive experience of plaintiffs’ attorneys and the complexity
of the litigation, the court finds that application of hourly
rates at the high end of these ranges is appropriate.”).

Thus,

the Court awards fees of $450 an hour for partners Chiappa and
Sullivan, $300 an hour for senior associate Werner, and $200 an
hour for junior associates Boyer and Michaeli.
B.

Number of Hours
In calculating the number of “reasonable hours,” the

Court must look to its own familiarity with the case and its
experiences generally as well as to any evidentiary submissions
and arguments made by the parties.
1153.

See Clarke, 960 F.2d at

The main issue is “whether, at the time the work was

performed, a reasonable attorney would have engaged in similar
time expenditures.”
1992).

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

Thus, a court should “exclude hours that were excessive,
13

redundant, or otherwise unnecessary to the litigation.”

Cho v.

Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 209 (E.D.N.Y. 2007)
(internal quotation marks and citation omitted).
Discovery in this case spanned approximately a year
and

Plaintiffs

put

forth

eight

separate

causes

of

action.

Moreover, Defendant has reduced by 50% its time spent on work
for both TMS and TMC.

(Chiappa Aff. ¶ 10.)

not requesting fees for paralegals.

Defendant also is

(Chiappa Aff. ¶ 11.)

Thus,

Defendant’s requested number of hours spent working on this case
is reasonable.
With

respect

to

the

Rule

11

motion,

Defendant

acknowledges that it ultimately decided not to file the motion.
(Chiappa Aff. ¶ 7.)

Plaintiffs therefore assert that hours

spent in researching and drafting the motion should be excluded
from Defendant’s overall award.
In
unnecessary

retrospect
to

unreasonable.
repeated

the

the

The Court disagrees.
Rule

litigation,

but

11
at

motion
the

may

time

have
it

was

been
not

(See Chiappa Aff. ¶ 7 (“Our activities included

attempts

to

persuade

Plaintiffs

to

discontinue

this

action, on the ground that it had no factual or legal merit, so
as to minimize fees and expenses incurred by all parties. In
connection with that effort, we drafted a Rule 11 motion.”).)
In any event, defense counsel affirms that the work on the Rule
11 motion was not for naught since they used the Rule 11 motion
14

as

a

first

draft

of

their

motion

for

fees

and

expenses.

(Chiappa Aff. ¶ 7.)
C.

Plaintiffs’ Additional Arguments
As the Court has significantly reduced the amount of

the

fee,

the

Court

need

arguments

for

reduction.

not

address

However,

Plaintiffs’

the

Court

additional

will

briefly

address Plaintiffs’ argument that they do not have the financial
means to satisfy a fee award and that any fee granted should be
awarded as against Sunrise only.

(Pls’. Opp. Br., Docket Entry

50, at 13-14.)
Plaintiffs

are

correct

that,

at

times,

courts

have

noted the equitable nature of attorneys’ fees and considered a
party’s financial ability to pay an award of fees.

See Shangold

v. Walt Disney Co., 275 F. App’x 72, 74 (2d Cir. 2008); Nature’s
Enters., Inc. v. Pearson, No. 08-CV-8549, 2010 WL 447377, at *11
(S.D.N.Y. Feb. 9, 2010).

However, in support of their argument

that “Gray’s financial condition makes a substantial fee award
unfeasible” (Docket Entry 50 at 14), Plaintiffs offer proof only
of a number of judgments that have been entered against Gray.
Wholly lacking from their submission on this point is proof that
Gray cannot pay those judgments or that an additional award of
attorneys’

fees

against

Gray

would

15

subject

him

to

financial

ruin2.

See Shangold, 275 F. App’x at 74 (affirming reduction of

attorneys’ fees based on financial statements showing assets,
expenses, and income); Gary Friedrich Enters., LLC v. Marvel
Enters., Inc., No. 08-CV-1533, 2010 WL 3452375, at *3 (S.D.N.Y.
Sept.

1,

2010)

(concern

about

other

judgments

does

not

necessarily mean that plaintiffs cannot satisfy court judgment
in this case); Mariani v. Banat Realty, No. 86-CV-2895, 1993 WL
86530, at *1 (E.D.N.Y. Mar. 18, 1993) (directing defendant to
submit an affidavit describing financial assets, liabilities,
income, and expenses).
Accordingly,

the

Court

finds

that

an

award

of

attorneys’ fees in favor of Defendant and against all Plaintiffs
is warranted, in the total amount of $150,050.3
D.

Costs
Finally,

disbursements.

Defendant

(Chiappa

seeks

Aff.

¶

$1,370.26
2.)

These

in

costs

costs

and

include

expenses such as printing, postage, and discovery vendor costs.

Furthermore, in granting Defendant attorneys’ fees, the Court
made the following statement: “Although the Court stops short of
finding that the present action was ‘plainly lacking in merit,’
it notes that it was not a particularly close case.” (September
Order at 4.)
2

This fee represents Chiappa’s time of 131.9 hours at $450 an
hour for a total of $59,355; Sullivan’s time of 9.1 hours at
$450 an hour for a total of $4,095; Werner’s time of 73.7 hours
at $300 an hour for a total of $22,110; Boyer’s time of 302.15
hours at $200 an hour for a total of $60,430; and Michaeli’s
time of 20.3 hours at $200 an hour for a total of $4,060.
3

16

(Chiappa Aff. ¶ 30.)
reasonable,

and

The Court finds these expenses to be

accordingly

Defendant’s

motion

for

costs

and

motion

for

disbursements in the amount of $1,370.26 is GRANTED.
CONCLUSION
For

the

foregoing

reasons,

Defendant’s

leave to file a reply memorandum of law and Plaintiffs’ motion
for

leave

to

Defendant’s

file

motion

a
for

sur-reply

are

attorneys’

GRANTED.

fees

is

Additionally,

GRANTED

IN

PART.

Defendant is awarded $150,050 in attorneys’ fees and $1,370.26
in costs and disbursements.
SO ORDERED.

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

July
16 , 2013
Central Islip, NY

17