Berkshire Bank v. Tedeschi

Filing 47

DECISION and ORDERED, that Plaintiffs Motion (Dkt. No. 37) for attorneys fees and costs is DENIED without prejudice; and it is further ORDERED, that Plaintiff may, within twenty-one(21) days of the filing date of this decision and order, submit a new, properly supported motion for attorneys fees and costs. Signed by Senior Judge Lawrence E. Kahn on March 31, 2014. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BERKSHIRE BANK,
Plaintiff,
-against-

1:11-CV-0767 (LEK/CFH)

NANCY K. TEDESCHI,
Defendant.
___________________________________
DECISION and ORDER
I.

INTRODUCTION
The Court previously granted Plaintiff Berkshire Bank (“Plaintiff”) summary judgment on

its claims for recovery on two promissory notes executed by Defendant Nancy K. Tedeschi
(“Defendant”) and related attorneys’ fees and costs. See Dkt. No. 35 (“Order”). The Court deferred
the determination of the amount of fees and costs pending Plaintiff’s filing of a separate motion.
Order at 26. That Motion is presently before the Court. See Dkt. No. 37 (“Motion”). Plaintiff
seeks attorneys’ fees in the amount of $45,635 and costs in the amount of $4,137.27. See id. at 1.
Because Plaintiff failed to provide admissible evidence in support of the Motion, the Court denies
the Motion without prejudice to Plaintiff’s filing of a properly supported motion within twenty-one
days of the filing date of this Decision and Order.
II.

BACKGROUND
Plaintiff sued for the breach of two promissory notes secured by a mortgage on a New York

Property (“New York Notes”) and one promissory note secured by a mortgage on a Florida property
(“Florida Note”). See Order at 2-3. The Court granted Plaintiff partial summary judgment on the
New York Notes but granted Defendant partial summary judgment on the Florida Note. See

generally id. The Court found that the language of the New York Notes explicitly required
Defendant to reimburse Plaintiff for the attorney’s fees and costs it incurred in enforcing them but
deferred determination of the amount. Id. at 25. Plaintiff filed the Motion and Defendant a
Response and supporting affidavit. See Dkt. Nos. 43 (“Response”); 42 (“Response Affidavit”).
Plaintiff did not file a reply brief. See generally Docket.
III.

LEGAL STANDARD
“The district court retains discretion to determine . . . what constitutes a reasonable fee.”

Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2013) (citing LeBlanc-Sternberg v.
Fletcher, 143 F.3d 748, 758 (2d Cir. 1998)). Reasonableness depends on, inter alia, “the difficulty
of the questions involved; the skill required to handle the problem; the time and labor required; the
lawyer’s experience, ability and reputation; the customary fee charged by the Bar for similar
services; and the amount involved.” F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250,
1263 (2d Cir. 1987). The lodestar, the result of multiplying a reasonable hourly rate by the
reasonable number of hours required by the case, creates a “presumptively reasonable fee.” Id.
(quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 183
(2d Cir. 2008); Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551-52 (2010)). A motion for
attorneys’ fees and costs must be supported by admissible evidence. See Sanchez v. Viva Nail NY
Inc., No. 12-CV-6322, 2014 WL 869914, at *1 (E.D.N.Y. Mar. 4, 2014)
IV.

DISCUSSION
In support of its Motion and accompanying Memorandum, Plaintiff offers an affidavit from

David E. Valicenti (“Valicenti”), an attorney at Cohen Kinne Valicenti & Cook LLP (“Cohen
Kinne”) and Plaintiff’s counsel of record; a statement reflecting the date, duration, and nature of the
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work performed by Cohen Kinne attorneys and paralegals in this matter; and a statement detailing
expenses incurred by Cohen Kinne in this matter. See Dkt. Nos. 37-1 (“Memorandum”); 37-2
(“Valicenti Affidavit”); 37-3 (“Services Statement”); 37-4 (“Expense Statement”). Defendant
alleges that: (1) the Valicenti Affidavit constitutes hearsay with respect to the experience and
education of non-Valicenti attorneys; and (2) the Services and Expense Statements are hearsay and
have not been shown to be admissible under the business records exception. See generally Resp.;
Resp. Aff.
A. Valicenti Affidavit
The only evidence Plaintiff provides of its attorneys’ and paralegals’ experience and
education is the Valicenti Affidavit. The Valicenti Affidavit is hearsay with respect to nonValicenti attorneys’ and paralegals’ education and their experience accrued outside Cohen
Kinne—Valicenti has provided no indication that he has personal knowledge of either their
education or accrual of such experience. See generally Valicenti Aff.; see also United States v.
Bosurgi, 530 F.2d 1105, 1111 (2d Cir. 1976) (“[The] affidavit was not on personal knowledge and
thus amounted to hearsay.”). As the Valicenti Affidavit does not indicate how much, if any, of the
putative experience was incurred at Cohen Kinne—experience of which Valicenti would likely have
personal knowledge as a long-time Cohen Kinne attorney—Plaintiff has failed to provide admissible
evidence showing that the non-Valicenti attorneys and paralegals had any experience.
2. Services Statement
As evidence of the hours worked and tasks performed by each attorney and paralegal,
Plaintiff submits the Services Statement, which purportedly reflects this information. See Valicenti
Aff. ¶ 2. Defendant argues that the Statement constitutes hearsay. See Resp. Aff. ¶ 4. The Court
3

agrees—the Statement appears to be comprised of entries made by various Cohen Kinne
professionals regarding work performed and time spent. See Valicenti Aff. ¶ 1; Services Statement.
Because the entries are offered for the truth of the matter asserted, they constitute hearsay. See FED.
R. EVID. 801.
Defendant further argues that Plaintiff has failed to lay a proper foundation for admission of
the Services Statement as a contemporaneous business record under Federal Rule of Evidence
803(6), an exception to the hearsay rule. See Resp. Aff. ¶ 4; Major League Baseball Props., Inc. v.
Salvino, Inc., 542 F.3d 290, 312 (2d Cir. 2008). Again, the Court agrees. A record is admissible
under this Rule only where, inter alia, it is “kept in the course of a regularly conducted business
activity” and “making the record was a regular practice of that activity.” FED. R. EVID. 803(6)(B)(C). Moreover, compliance with these requirements must be shown “by the testimony of the
custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12)
or with a statute permitting certification.” The Valicenti Affidavit does not even allege that the
Statement complies with these requirements, or that Valicenti can so testify. See generally Valicenti
Aff.
3. Expense Statement
In support of its claim for expenses, Plaintiff offers the Expense Statement. See Valicenti
Aff. ¶ 5; Expense Statement. Valicenti states only that it is a “true statement of costs incurred in
connection with this case.” Id. Again, he provides no basis for this assertion, see id., and the Court
cannot determine whether the Expense Statement is admissible as a contemporaneous business
record or on some other ground.

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4. Conclusion
As Plaintiff has failed to provide admissible evidence supporting its entitlement to any
portion of the requested fees and costs, the Motion must be denied.1 Because it would be
inequitable to deny Plaintiff the chance to remedy these curable evidentiary defects, the dismissal is
without prejudice. Plaintiff may, within twenty-one days of the filing date of this Decision and
Order, submit a properly supported motion for fees and costs.2
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt. No. 37) for attorneys’ fees and costs is DENIED

without prejudice; and it is further
ORDERED, that Plaintiff may, within twenty-one(21) days of the filing date of this
decision and order, submit a new, properly supported motion for attorneys’ fees and costs; and it is
further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties.
IT IS SO ORDERED.
DATED:

March 31, 2014
Albany, New York

1

The Court therefore refrains from addressing Defendant’s arguments regarding the
reasonableness of the amount of requested fees and expenses. See generally Resp.
2

As Plaintiff was already put on notice of these defects by the Response and Response
Affidavit but did not attempt to remedy them in any way, it would behoove Plaintiff to file a
compliant motion.
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