RCB Equities #3, LLC v. Skyline Woods Realty, LLC et al
MEMORANDUM-DECISION AND ORDER granting 59 Motion for Attorney Fees and costs. Signed by U.S. District Judge Mae A. D'Agostino on 6/7/13. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RCB EQUITIES #3, LLC,
SKYLINE WOODS REALTY, LLC; HOWARD
MARTIN & NEW YORK STATE DEPARTMENT
OF TAXATION AND FINANCE,
SCHILLER, KNAPP LAW FIRM
950 New Loudon Road
Latham, New York 12110
Attorneys for Plaintiff
William B. Schiller, Esq.
ZISHOLTZ & ZISHOLTZ, LLP
170 Old Country Road, Suite 300
Mineola, New York 11501
Attorneys for Defendants
Skyline Woods Realty, LLC and
Stuart S. Zisholtz, Esq.
Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Presently before the Court is a motion submitted by RCB Equities #3, LLC (“RCB” or
“plaintiff”) for an Order awarding attorneys’ fees in the amount of $31,103.61 and costs and
disbursements in the amount of $2,340.63. (Dkt. No. 59). Defendants Howard Martin and
Skyline oppose plaintiff’s motion and argues that an evidentiary hearing is necessary in the
absence of a retainer agreement. (Dkt. No. 60).
BACKGROUND AND PROCEDURAL HISTORY
Familiarity with the facts and procedural history is assumed based upon this Court’s prior
Memorandum-Decisions and Orders. On March 11, 2013, this Court issued an Order and denied
defendant’s motion for summary judgment and adopted the referee’s report. The Court denied
plaintiff’s motion for attorneys’ fees and costs with leave to renew within thirty days of the Order
Here, the record lacks sufficient information to allow this Court to
award a reasonable amount for attorneys’ fees and costs. Plaintiff has
not provided copies of contemporaneous time records or invoices
demonstrating attorneys' fees and costs incurred as a result of the
within action. Plaintiff's submission includes an Declaration of
William B. Schiller wherein counsel avers that, “[a]s of the date of this
declaration, fees for legal services rendered in this matter total
$23,096.79" and information regarding “prospective legal services”.
However, the declaration does not include information regarding
counsel’s background and experience and the customary fees and/or
hourly rate charged for similar legal services. See E. Savings Bank,
FSB v. Rabito, 2012 WL 3544755, at *7 (E.D.N.Y. 2012) (in addition
to a judgment of foreclosure and sale, plaintiff sought attorneys’ fees
but failed to submit contemporaneous time records and documents
regarding costs incurred during the course of litigation); see also
Imaging Fin. Serv., Inc. v. Digital Page, LLC, 2012 WL 913257, at *3
(N.D.N.Y. 2012) (the plaintiff failed to submit documentation of either
the attorneys' hourly rate or the number of hours spent on this matter,
and therefore cannot determine whether the requested fees and costs
are reasonable). Accordingly, plaintiff’s motion is denied. However,
the Court will allow plaintiff to supplement the request for fees with
the aforementioned information. See Lumbermens Mut. Cas. Ins. Co.
v. Darel Group U.S.A., Inc., 253 F.Supp.2d 578, 587 (S.D.N.Y.2003).
Plaintiff has timely renewed the motion and has annexed an attorney affidavit detailing
counsels’ experience and contemporaneous time records.
In determining reasonable attorney's fees, the district court must calculate a “lodestar”
figure based upon the number of hours reasonably expended by counsel on the litigation
multiplied by a reasonable hourly rate. Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.1997)
(citations omitted). The Court has “discretion in determining the amount of a fee award,” and
must use that discretion to make “its own assessment of what is appropriate[.]” Luca v. County of
Nassau, 698 F.Supp.2d 296, 306 (E.D.N.Y.2010) (internal citations omitted) (citing N.Y. State
Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983)).
With respect to hourly fees, the Second Circuit has held that courts are to award the
presumptively reasonable fee, that is, the fee that would be paid by a reasonable, paying client in
the relevant community. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of
Albany, 522 F.3d 182, 191–93 (2d Cir .2008). The prevailing community is the district in which
the court sits. Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.1997). In determining what is
reasonable, the following factors are useful:
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the level of skill required to perform the legal service
properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the attorney's customary hourly rate; (6)
whether the fee is fixed or contingent; (7) the time limitations imposed
by the client or the circumstances; (8) the amount involved in the case
and the results obtained; (9) the experience, reputation, and ability of
the attorneys; (10) the “undesirability” of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards
in similar cases.
Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 186 n. 3.
In this District, cases have upheld an hourly rate for a partner of between $250 and $345.
Jimico Enter., Inc. v. Lehigh Gas Corp., 2011 WL 4594141, at *10 (N.D.N.Y.2011) (collecting
cases). Attorney Schiller asserts that he has nearly twenty years experience in the areas of
foreclosure and bankruptcy. In addition, Attorney Lefkowitz has been practicing for thirty years
concentrating on litigation in commercial, contract, employment, corporate, and personal injury.
The hourly rate charged by both attorneys is within the acceptable hourly rate within this District.
See Jimico Enter., 2011 WL 4594141, at *10 (in this District, cases have upheld an hourly rate for
a partner of between $250 and $345). Based upon the experience level of the attorneys involved
in this litigation, the Court finds that the rates in this action are reasonable.
Errors in Invoices and Excessiveness
Defendants contend that there are material errors in the invoices and that the services
rendered were excessive. The Court disagrees. Plaintiff asserts that a total of 122.89 hours were
spent on this matter from 2010 until October 2012. “[T]o determine whether time for which
reimbursement is sought was reasonably spent, the court must evaluate the tasks and the time
documented in counsel's contemporaneous time records in light of its general experience and its
experience with the case.” DLJ Mortg. Capital, Inc. v. Act Lending Corp., 2008 WL 5517589, at
*7 (S.D.N.Y.2008) (citing New York State Ass'n for Retarded Children, Inc., 711 F.2d at 1146–48
(a fee application must be supported by contemporaneous time records that “specify, for each
attorney, the date, the hours expended, and the nature of the work done)). Having reviewed
counsel's billing statements and Attorney affidavit, the Court finds that counsels' hours associated
with pursuing this action are supported by contemporaneous time records that show, for each
attorney, the date, the hours expended, and the nature of the work done. Based upon the work
performed and the experience of counsel, the Court finds that all recorded time is reasonable.
There is no basis to find that counsel’s services during the course of the litigation were
unnecessary, duplicative, excessive, or otherwise unreasonable, particularly in view of the
complexity of the litigation and defendant’s actions during the course of this litigation.
Accordingly, plaintiff's request for attorneys' fees and costs in the amount of is $31,103.61
Costs and Disbursements
Plaintiff also seeks reimbursement for costs in the amount of $1,363.41. Plaintiff has
submitted a statement identifying its costs including title fees, process server fees, filing fees and
transcript fees. Therefore, the Court grants plaintiff's request for costs.
It is therefore
ORDERED, that plaintiff’s motion for attorneys’ fees and costs (Dkt. No. 59) is
The Court will enter a Judgment of Foreclosure and Sale under separate Order.
IT IS SO ORDERED.
Dated: June 7, 2013
Albany, New York
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