K.F. v. New York City Department of Education

Filing 56

MEMORANDUM ORDER granting in part and denying in part 18 Motion for Attorney Fees, filed by K.F.: Plaintiff's counsel's application for attorney's fees is GRANTED in part and DENIED in part to the extent indicated in this Memorandum and Order. By September 2, 2011, plaintiff's counsel shall file a revised submission consistent with this Court's rulings. (Signed by Judge P. Kevin Castel on 8/10/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _ _ _ _ __

-----------------------------------------------------------x

DATE FILED:

K.F., individually and on behalf of L.A.,
a child with a disability,
Plaintiff,

5-10- i l

10 Civ. 5465 (PKC)

-againstMEMORANDlJM
AND ORDER
NEW YORK CITY DEPARTMENT OF
EDUCATION,
Defendant.

-----------------------------------------------------------x
P. KEVIN CASTEL, District Judge:
Plaintiff brings this action under the fee shifting provisions of the
Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiff
asserts that she was the prevailing party and is entitled to attorney's fees and expenses in
the amount of$110,837.87 incurred by the Law Office of Andrew K. Cuddy. The New
York City Department of Education ("DOE") opposes the fee application on a variety of
grounds, principally including: (l) the hourly rate sought by these attorneys is not
reasonable under the circumstances presented; (2) a reasonable attorney's fee ought not to
include the time spent by attorneys, Andrew Cuddy and Michael Cuddy, travelling
between their home cities, Auburn, NY and Ithaca, NY, and the location of the hearing,
Brooklyn, NY - a five hour trip of over 240 miles; and (3) a reasonable attorney's fee
ought not to include the participation of the two Messrs. Cuddy at the due process
hearing.

For the reasons discussed below, the application is granted in part and
denied in part. The Court concludes that plaintiff is a prevailing party and entitled to a

reasonable attorney's fee. A reasonable hourly rate for these attorneys based on
prevailing rates in the Southern District of New York is $375 per hour and $125 per hour
for the paralegal. A reasonable attorney's fee in this case does not include the travel time
to and from the attorneys' home cities to Brooklyn nor the time charges of a second
senior attorney at the hearing.
DISCUSSION
"In any action or proceeding brought under [the IDEA], [a] court, in its
discretion, may award reasonable attorneys' fees as part of the costs ... to a prevailing
party who is the parent of a child with a disability." 20 U.S.c. § l41S(i)(3)(B)(i)(I). The
fee award "shall be based on rates prevailing in the community in which the action or
proceeding arose for the kind and quality of services furnished." Id. § 14l5(i)(3)(C). The
IDEA fee-shifting provisions are interpreted in the same manner as other civil rights feeshifting statutes.

A.R. ex reI. R.V. v. N.Y.C. Dep't of Educ., 407 F.3d 6S, 73 (2d Cir.

200S) (citing I.B. ex rei. Z.B. v. N.Y.C. Dep't ofEduc., 336 F.3d 79, 80 (2d Cir. 2003)
(per curiam».
In determining whether to award attorney's fees under a federal fee­
shifting statute such as IDEA, the court must undertake a two-pronged inquiry. See Mr.
=-,-,-===,-",449 F.3d 40S, 407 (2d Cir. 2006). First, the Court must "detern1ine whether
the party seeking the award is in fact a prevailing party." Id. "Ifthe party is a prevailing
party, the court must then determine whether, under the appropriate standard, that party
should be awarded attorney's fees." Id.

2

I.

Prevailing Party
PlaintiffK.F. is the parent ofL.A., a child with autism. (Pl.'s Mem. at l.)

In September 2009, K.F. and L.A. moved to New York City from Puerto Rico. (Id.)
Shortly thereafter, in October 2009, K.F. referred L.A. to the DOE's committee on
preschool special education. (Id.) In her previous school district in Puerto Rico, the child
was classified as a preschool student with a disability. (Id.) In January 2010, having not
received any special education services or placement in any school program by the DOE,
the plaintiff, through the Cuddy law firm, requested an impartial due process hearing
alleging various violation of the IDEA. (Id.)
The hearing was convened and the Impartial Hearing Officer ("IHO")
found that the DOE had not provided the child with a free and appropriate public
education for the 2009-10 school year. (IHO Findings of Fact & Decision at 15, attached
at Decl. of Andrew Cuddy, Ex. B.) The IHO ordered the development of a new
Individualized Education Program ("IEP") and also ordered the child to receive certain
additional individual services, including 20 sessions of speech and language, 10 sessions
of occupational therapy and 272 hours of other services. (Id.) As the hearing resulted in
an administrative order from the IHO granting relief in favor of the parent as against the
DOE, K.F. is a prevailing party. See A.R. ex ref. R.V., 407 F.3d at 75 ("[A] plaintiff who
receives IHO-ordered relief on the merits in an IDEA administrative proceeding is a
'prevailing-party. "').
II.

Calculation of Attorney's Fees
Having concluded that the parent is a prevailing party, this Court may

award reasonable attorney's fee "based on rates prevailing in the community in which the

3

action or proceeding arose for the kind and quality of services furnished." 20 U.S.C. §
1415(i)(3)(B)(i)(I); id. § 1415(i)(3)(C). The principles outlined by the Second Circuit in
Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182,
190 (2d Cir. 2008) apply to attorney's fee applications under the IDEA See E.S. v.
Katonah-Lewisboro Sch. Dist., 09 Civ. 4770 (LAP), 2011 WL 1560866, *3 (S.D.N.Y.
Apr. 20, 2011); see also Green v. City of New York, 403 F. App'x 626, 629 (2d Cir.
2006) (non-precedential summary order).
A

The Southern District of New York is the
Community in Which the Action or Proceeding Arose
The dispute in this case was pursued through an IDEA administrative

proceeding held in Brooklyn, a county in the Eastern District of New York. The events
giving rise to the hearing occurred in the Bronx, a county in the Southern District of New
York, where the child resided.

The law firm representing the plaintiff in the IDEA

proceeding is based in the Northern District of New York. I conclude that in this case the
most significant factor in determining "the community in which the action or proceeding
arose" is the locus of where the child was denied a free and appropriate public education.
That was in this District and this District's billing rates will be applied. See AR. ex reI.
R.V., 407 F.3d at 80-82 (concluding that the district court did not abuse discretion in
applying Southern District of New York rates where students attended schools in that
district but administrative hearings were held in both the Southern and Eastern Districts
of New York).

4

As the DOE notes, these attorneys are routinely paid at lower hourly rates
for similar services in the district where they customarily practice.] This does not,
however, foreclose the grant of Southern District of New York rates for their services in
this matter. The Second Circuit has noted that an out-of-district attorney may be entitled
to receive a higher rate when practicing in this district than the rate the he or she
ordinarily receives in the community in which he or she usually practices. Id. at 80
(citing Donnell v. United States, 682 F.2d 240, 251-52 (D.C.CiI. 1982)). This result is
thoroughly consistent with the generally understood concept of a rate prevailing in a
geographic market. 2
B.

Reasonableness of the Hourly Rate
Plaintiff seeks an hourly rate of $450 per hour for the two Messrs. Cuddy

and for a third lawyer, Jason H. Sterne, and $200 per hour for paralegal Diane Zambotti.
"The reasonable hourly rate is the rate a paying client would be willing to pay." Arbor
522 F.3d at 190. The Court should endeavor to determine "the market rates
prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation." Gierlingerv. Gleason. 160 F.3d 858,882 (2d CiI.
1998) (internal quotation marks omitted). The court "should ... bear in mind that a
~--~~---------

1 In two IDEA cases decided in the Northern District of New York, Judges Mordue and Scullin, Jr., set the
reasonable hourly rate for attorneys Andrew Cuddy and Jason Sterne, Esq. at $210 per hour and $80 per
hour for Ms. Zarnbotti. V.G. v. Auburn Enlarged Cent. Sch. Dist., 06 Civ. 531 (NAM/GHL), 2008 WL
5191703, *15 (N.D.N.Y. Dec. 9, 2008); J.S. v. CrownPoint Cent. Sch. Dis!., 06 Civ. 159 (FJS/DRH), 2007
WL 475418, *6 (N.D.N.Y. Feb. 7, 2007). In each instance ofa citation to an hourly rate in a reported
decision, the Court has remained mindful of the likely incrcase in rates during the passage of time since the
reported decision and the present.
2 By way of example, a locksmith who lists his phone number in the Manhattan telephone directory and
renders services to a customer in Manhattan would be expected to charge Manhattan rates for services
rendered, regardless of whether his shop is located in Rockland County, NY, or the Upper West Side of
Manhattan. That same locksmith would be expected to charge his Rockland County customers a lower rate
consistent with the prevailing market rate in Rockland County. Similar to the locksmith's phone listing,
The Law Office of Andrew K. Cuddy maintains a website featuring the Manhattan skyline showing the
Brooklyn Bridge and the Woolworth Building with the tag line "Special Education Lawyers for New York
City and New York State." http://www.cuddylawfirm.com.

5

reasonable, paying client wishes to spend the minimum necessary to litigate the case
effectively."

~=="'"

522 F.3d at 190.

In determining an appropriate hourly rate, "the district court should
consider, among others, the Johnson factors ...."

(referencing Johnson v. Ga.

Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by
Blanchard v. Bergeron, 489 U.S. 87,92-93 (1989).3
The attorneys in this case are experienced in administrative hearings of
this type. Andrew Cuddy was admitted to the bar of the state of New York in 1996
(1113/2011 Dec\. Andrew Cuddy ~ 29) and Michael Cuddy was admitted in 1989.
(111312011 Decl. Michael Cuddy ~ 2.) Both are graduates ofthe University at Buffalo

Law School. (1113/2011 Decl. Andrew Cuddy ~ 29; 1113/2011 Decl. Michael Cuddy ~
1.) Andrew Cuddy has authored a guide for parents on impartial hearings. (1113/2011
Decl. Andrew Cuddy ~ 32.) Michael Cuddy worked as a school district administrator
from 1990 to 2009, including as Assistant Superintendent for Human Resources of the
Baldwinsville Central School District. (1113/2011 Decl. Michael Cuddy ~ 4.) Jason H.
Sterne is a 1996 graduate of University at Buffalo Law School and has authored over 60
closing briefs in IDEA hearings. (Decl. Jason H. Sterne ~~ 15,22.) An important
consideration under Johnson is the result achieved by the attorneys. Here, as previously
described, plaintiffs counsel achieved a favorable result at the administrative hearing,
which the DOE elected not to appeal to the State Review Officer.

3 The
factors are: "( 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 ofthe 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, 522 F.3d at 187 n.3 (citing
488 F.2d at 717-19).

6

This case, however, was neither novel nor complex. From the hearing
transcripts, the Court cannot discern any difficult legal issues or key credibility disputes
in the case. 4 See E.S. v. Katonah-Lewisboro Sch. Dist., 2011 WL 1560866 at *4 ("The
question presented [in a single-student IDEA case of a student diagnosed with
schizo affective disorder and borderline intellectual functioning] was not particularly
difficult and did not require extremely experienced counsel."). The hearing sessions were
conducted on non-contiguous dates and usually no more than one live witness was
presented on any date with, on occasions, a second witness appearing by telephone. The
DOE was not represented by an attorney in the proceeding before the IHO. Indeed, nonlawyer advocates may represent parents in hearings before an IHO. See 20 U.S.c. §
1415(h)(1); 8 N.YC.R.R. § 200.SG)(3)(vii). Of course, an experienced parent's attorney
may be better equipped than a neophyte to identify winning strategies, including the
proper relief to seek. The work in preparing and presenting this case, however, was
substantially less challenging than, for example, the work of an attorney presenting a
section 1983 claim who must first guide the case through pre-trial discovery and the
predictable case dispositive motions before presenting the case to a jury in a persuasive
and effective manner consistent with the law of evidence and against an experienced
lawyer-adversary.
Another factor to be considered under Johnson is whether counsel worked
on a contingency fee basis. This is a relevant consideration because, in a hypothetical
negotiation, a client may be willing to pay an attorney more per hour for a successful
result ifhe or she would pay nothing if the action were not successful. Here, the finn

The
nature of these hearings will be discussed below in the section addressing whether it was
reasonable to have two senior attorneys present at each session.

4

7

entered into a contingency arrangement with K.F. in which it agreed that it would only
recover fees if she prevailed and the firm was able to recover the fees against the DOE.
(PI.'s Mem. at l7)("[P]ayment ... depended entirely on the fee-shifting provision, as the
parents were indigent."). This arrangement is fundamentally unlike a percentage-of-the­
recovery contingent fee deal where a client would retain a vested interest in keeping the
attorney's fee percentage as small as possible in order to maximize the client's own
recovery. The significance of a client agreed-upon rate of $450 (as the product of an
arms-length negotiation) takes on less significance when the client knows it will never
pay that amount. Nevertheless, Mr. Cuddy's willingness to take the case on a
contingency fee basis is also a factor weighing in his firm's favor.
Additionally, there is no plausible or substantiated basis to conclude that a
similarly situated parent with a meritorious claim would not have been able to locate a
well qualified attorney willing to proceed with this case. The declaration of an attorney
with Legal Services of Advocates for Children of New York, Inc. ("AFC") notes that, for
example, AFC at times turns down parents due to staffing shortages or because they do
not meet their very low income cap (Decl. Kimberly Madden ~ 3). But the conclusion
that there is a shortage of willing attorneys to take on IDEA cases is undercut by the
existence of the fee-shifting provision and the number of attorneys who practice in this
arena as evidenced by the submissions of the parties. s True, K.F. did not know of the
existence of any willing attorney or advocate until referred to the Cuddy firm by Bronx
Lebanon Hospital but that does not mean that the case was "undesirable" or that other

5 According to the DOE's submission, since 2005 there have been 811 lawyers and non-lawyer advocates
representing parents in IDEA hearings. (2124/2011 Dec!. Christopher Harriss'l 5.)

8

experienced attorneys, attracted by the fee-shifting provisions, would have turned down
the case. 6
Finally, the plaintiff has not established that her counsel's rates are in line
with the prevailing rate for legal services in this District. Plaintiffs counsel has
submitted affidavits from several attorneys who represent parents seeking relief under
IDEA. In one instance, an affiant asserts an hourly rate of up to $600 per hour. The
initial submissions, however, did not reveal "whether these rates represent fees actually
paid by parents in IDEA cases in which a hearing was demanded but in which there was
no fee shifting (presumably because the parent did not prevail) or, instead, fees
consensually paid by a losing school district under the statutory fee-shifting scheme."
(6115/2011 Order at 2, Docket # 43.) Accordingly, the parties were directed to

supplement their submissions. The Court has reviewed the initial and supplemental
submissions of plaintiffs counsel and the supplemental submissions of the DOE. The
Court need not recount in the body of this Memorandum and Order all that it has
considered but it has considered the entirety of all submissions. 7
One lawyer not involved in the case, Jesse Cole Cutler, has supported
plaintiffs fee request with a declaration that he charges $350 per hour. (7/18/2011 Decl.
Jesse Cole Cutler ~ 9.) He cites three IDEA cases that he handled during 2010. (Id. at ~~
9-11.) In each of the three, he recorded 30, 69.5 and 76.5 hours, which at his billing rate
of$350 per hour would have resulted in fees of$10,675, $24,325 and $26,775 (the
6 A web search would have been a simple place for a parent to start. For example, Mr. Cuddy and several
of those who have submitted declarations on his behalf are listed on a special education lawyer reterral
website located at http://www.copaa.orglfind-a-resourceltind-an-attorney.
7 The Court thanks counsel for their work in assembling all of the materials. The Court has concluded that
much of the information presented by the DOE concerning negotiated compromises of attorney's fee
demands (information that the Court requested) is not a good proxy for the hypothetical negotiation
between lawyer and client because the DOE's motives to settle may arise from fundamentally different
considerations than those faced in the parent-client fee negotiation.

9

"billable amounts") respectively. (Id.) In the three cases, the DOE settled the attorneys'
fees amounts for sums less than the billable amounts: $10,675, $18,400 and $20,000.
(Id.) In one of the three, the parents paid the difference between the billable amount and
the amount recovered from DOE and in the other two, the parents had previously paid
more than the difference between the billable amounts and the amount recovered from
DOE and received a refund. (Id.)
Another supporter of plaintiffs fee request, Adrienne J. Arkotaky,
declares that she bills at $350 per hour. (7/1012011 Decl. Adrienne J.

Arkotaky~

6.) She

cites one IDEA case that she handled through hearing in which she or her colleagues
billed 16.75 hours at $325 per hour, 18.5 hours at $230 per hour and 14.25 hours of
paralegal time at $225 per hour, resulting in a billable amount of approximately $13,000.
(Id. at ~ 7.) DOE paid $9,000 towards the billable amount and $3,844 was received from
the parent in full satisfaction of the $4,000 deficit. (Id.) She (or her firm) has handled
other recent matters short of a hearing before an IHO at attorney hourly rates ranging
from $260 to $350 per hour. (Id. at ~~ 8-1 L)
Also in support of plaintiffs fee request, Barbara Ebenstein declares that
she offers parents what she describes as a "package" for representation at certain
meetings with school officials that are premised on several hours work at $450 per hour
for some of2010 and $500 at the end of2010. (7/1512011 Decl. Barbara J. Ebenstein ~
3.) Gary Mayerson, who has represented "many hundreds of families in IDEA cases,"
asserts that he charges $600 per hour. (7/15/2011 Decl. Gary S. Mayerson ("Mayerson
Decl.") ~ 4.) Associate rates range from $250 per hour to $425 per hour and paralegals
are billed at $125 per hour. (6/1212009 Engagement Letter, attached at Mayerson Decl.,

10

Ex. A.) He candidly and appropriately acknowledges that, where circumstances warrant,
he adjusts a bill for a client or compromises a fee application made to the DOE or school
district. (Mayerson Decl.

~

6.)

Courts commonly look at fee awards approved in other similar types of
cases. For example, Judge Holwell recently cited Magistrate Judge Gorenstein's 2007
survey of "attorneys' fees awarded in this district[, which] found that '[w]ithin the last
five years, courts have approved rates ranging from $250 to $425 per hour for work done
by partners in small firms in this district.'" Kahlil v. Original Old Homestead Rest.,
Inc., 657 F.Supp.2d 470,476 (S.D.N.Y. 2009) (quoting Reiter v. MTA of New York, 01
Civ. 2762 (GWG), 2007 WL 2775144, *7 (S.D.N.Y. Sept. 25, 2007));8 see also A.R. ex
:....::..:.;~;....;...;.,

407 F.3d at 82 (concluding that a Southern District court did not abuse its

discretion in setting reasonable rates for services rendered in 2000 and 2001 at impartial
hearings under IDEA at between $300 and $350 per hour). Quite recently, Chief Judge
Preska, considering the appropriate hourly rate for the managing partner of a firm with
fourteen years experience litigating IDEA cases, concluded that a fee of$415 was
unreasonably high and awarded a rate of$350 per hour. E.S. v. Katonah-Lewisboro Sch.
Dist., 2011 WL 1560866 at *5.
Utilizing the above case-speci:fie factors and considering the record as a
whole, this Court approximates the market rate prevailing in this District for similar
services by lawyers of reasonably comparable skill, experience and reputation as $375

8

The survey was not specific to IDEA cases and the age of the survey must be taken into account.

11

per hour. Premised upon the same considerations, a rate of$125 per hour is reasonable
for a paralegal with an associate's degree and substantial experience in the field.
C.

9

Travel from Ithaca, NY and Auburn, NY to Brooklyn, NY
Lawyers frequently need to travel to interview witnesses and conduct

depositions as a necessary adjunct to their services for a client. It is appropriate that they
be compensated for doing so. General1y, courts have approved 50% of hourly rates for
time spent in travel. Weather v. City of Mount Vernon, 08 Civ. 192 (RPP), 2011 WL
2119689, *4 (S.D.N.V. May 27,2011) (citing Gonzalez v. Bratton, 147 F.Supp.2d 180,
213 n.6 (S.D.N.Y. 2001)). Indeed, the Second Circuit has characterized the half-rate as
"established court custom."

Barfield, 537 F.3d at 139.

The type of travel time for which plaintiffs counsel seeks reimbursement
at half-rate, however, is of a fundamentally different nature. It is the time spent travelling
from their horne cities in Auburn, NY (in the case of Andrew Cuddy) and Ithaca, NY (in
the case of Michael Cuddy) to the hearing in Brooklyn NY, some 240 miles and five
hours away. In the case of Michael Cuddy, 40 of the 106.1 hours billed on the case is
travel time. (Pl.'s Mem. at 24.) Similarly, in the case of Andrew Cuddy, 40 of the 92.7
hours billed is travel time. Od.) Ancillary to the foregoing, the firm seeks reimbursement
for a three-night hotel stay between two hearing dates and reimbursement for tolls,
parking and mileage for each attorney's separate automobile travel to and from Auburn
and Ithaca. (Invoice p.14-15, attached at 111312011 Decl. Andrew Cuddy,

E.)

A fee of$75 an hour was found reasonable for work on an IDEA impartial hearing in 1999. ~=~=
407 F.3d at 72 n.8, 83; see
Barfield v. N,Y,C. Health and Hasps. Corp., 537 F.3d
151-53 (2d
Cir. 2008) (affirming district court's determination to award $75 per paralegal hour in an FLSA case in this
District).
9

12

In a hypothetical negotiation with a client who, unlike K.F., would be on
the hook for attorney's fees in the event the case were lost, it is doubtful that a reasonable
client would retain an Auburn or Ithaca attorney over a New York City attorney ifit
meant paying New York City rates and an additional five hours in billable time for each
trip. A reasonable attorney's fee does not include the time for commuting from Auburn
or Ithaca to Brooklyn and back.

U.S. ex rei. Feldman v. Van Gorp, 03 Civ. 8135

(WHP), 2011 WL 651829, *3 (S.D.N.Y. Feb. 9,2011) (denying attorney's fees for travel
time and costs related to travel to this District by Philadelphia-based lawyer in an IDEA
case); Imbeault v. Rick's Cabaret Intern. Inc., 08 Civ. 5458 (GEL), 2009 WL 2482134,
*8, n.3 (S.D.N.Y. Aug. 13,2009) (Lynch, 1.) (disallowing fees for travel between home
city of Minneapolis and litigation forum in this District in an FLSA case).
D.

Two Attorneys
Efficient staffing of a case may mean that more than one lawyer is utilized

to represent a client. There is nothing remarkable or unusual in the practice, which often
leads to lawyers with lower billing rates completing tasks rather than a more senior
lawyer with a higher rate. Nor is it per se unreasonable for two or more lawyers to
participate in a trial ofa case. N.Y.S. Ass'n for Retarded Children, Inc. v. Carey, 711
F.2d 1136, 1146 (2d Cir. 1983). The district court should make an "assessment of what is
appropriate for the scope and complexity of the particular litigation."

Both Messrs.

Cuddy appeared on behalf ofK.F. on most days at the hearing. The appearance of both
attorneys at the hearing was not, for reasons to be explained, reasonable.
The hearing in this case was conducted over a period of five non­
contiguous days. On the first hearing day, March 15, 2010, both Messrs. Cuddy were

13

present and each spoke before the IHO. Mr. Andrew Cuddy noted, among other things,
that the child was in schooL (3/15/2010 Tr. 30:6-11.) Mr. Michael Cuddy noted, among
other things, that there was a written agreement between the parties regarding the child's
placement. (Id. at 30:22-25.) One witness was called, a special education administrator,
and an examination was conducted by the DOE's non-lawyer representative who works
as a bilingual social worker. (Id. at 6:18-21; 32:14-33:13.) No legal argument of any
sophistication was presented. New dates were selected for the next hearing session. (Id.
at 75:20-76:1.) On the next hearing date, April 12, 2010, both Messrs. Cuddy were again
present. One of the two Messrs. Cuddy- I cannot tell which one from the transcript­
cross-examined the special education administrator. (4/121201 0 Tr. 81: 10-17.)
On April 14, 2010, both Messrs. Cuddy were present. The education
director of a preschool program testified via telephone. [phone] Tr. 279: 18-21;
284:15-16.) Mr. Michael Cuddy cross-examined the witness. (Id. at 390:14-16.) A
second witness testified who was the family's case manager at a shelter facility. (Id. at
294:18-20.) One of the two Messrs. Cuddy

I cannot tell which one from the transcript

briefly crossed examined her. (Id. at 344.)
On April 27, 2010, the DOE was represented by a different lay advocate, a
special education administrator. She advised the IRO as follows: "The representative is
unable to attend today. She's indisposed, so I rest the case. The Department of
Education is resting the case." (4/2712010 Tf. 438:18-22.) Both Messrs. Cuddy were
present and one of the two put on the direct testimony of the mother whereupon the
proceeding was adjourned. On May 17,2010, only Michael Cuddy was in attendance.
The original DOE lay representative returned and cross-examined the mother.

14

(5/17/2011 Tr. 556:5-12.) The child's classroom teacher was called by Michael Cuddy
and testified via telephone subj ect to cross-examination. (Id. at 641: 16-18.) The hearing
closed with the setting of a schedule for post hearing submissions. (Id. at 699:23-700:3.)
The foregoing does not adequately convey the informal nature ofthe
proceedings. No session began before 10:30 a.m. (one began at 12:30 p.m.) with all
sessions ending between 3 p.m. and 4 p.m., with the exception of one that ended at 4:30
p.m. None of the sessions were on contiguous dates. A lawyer in any administrative
proceeding, including this proceeding, should be skilled, diligent and prepared, as were
these lawyers. But the novelty, complexity and time pressures (or lack thereof) did not
require two senior lawyers in attendance at multiple sessions. lo I have considered the
plaintiffs arguments that the dual attorneys were necessary because it facilitated note
taking and communication with the parent; I find the argument to be unpersuasive and
substantially overstated. A reasonable attorney's fee does not include the time of a
second lawyer at these sessions.
The time spent by Jason H. Sterne, described as "principal brief-writer"
(PL's Mem. at 18) stands on a different footing. It was efficient and non-duplicative for
the firm to use his services for 27.5 hours.
CONCLUSION
Plaintiffs counsel's application for attorney's fees is GRANTED in part
and DENIED in part to the extent indicated in this Memorandum and Order. By
September 2,2011, plaintiffs counsel shall file a revised submission consistent witb this
Court's rulings.
10 All cases are different. I note, however, that most defendants in serious felony cases, including those
facing mandatory minimum prison terms, are represented by a single highly-competent attorney who ably
performs at a trial held day-after-day, sometimes over a period of weeks.

15

SO ORDERED.

..

Dated: New York, New York
August \0 ,2011

16

P. Kevin Castel
United States District Judge