Schoolcraft v. The City Of New York et al

Filing 621

REPLY AFFIRMATION of Nathaniel B. SMith in Support re: 559 MOTION for Attorney Fees , Costs and Disbursements.. Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit Smith Reply Exh 1 - witness lists, # 2 Exhibit Smith Reply Exh 2 - cover, # 3 Exhibit Smith Reply Exh 3 - original time sheets)(Smith, Nathaniel)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
ADRIAN SCHOOLCRAFT,

10-cv-6005 (RWS)

Plaintiff,
REPLY AFFIRMATION OF
NATHANIEL B. SMITH
-vCITY OF NEW YORK, et al.,
Defendants.
-------------------------------------------------------X
Nathaniel B. Smith, being an attorney admitted to practice law in this State and
before this Court, hereby states and declares under the penalties of perjury that the
foregoing is true and correct.
Introduction
1. As one of the attorneys for the plaintiff in the above-referenced action, I am
submitting this reply declaration on behalf of the Smith group of attorneys1 in response
to the papers submitted by the City Defendants in opposition to the motion. All the
significant issues raised by the City Defendants and their purported “expert” should be
rejected by the Court.
2. First, the City Defendants’ Offer of Judgment contractually bound the City
Defendants to pay all of the plaintiff’s “reasonable attorney’s fees expense, and costs

1

John Lenoir, Howard Suckle, James McCutcheon, law graduate, Magdalena Bauza, and myself.

to the date of this offer for the plaintiff’s federal claims.” (Offer of Judgment at p. 2;
attached as part of the Judgment, dated October 15, 2015; Dkt. # 541.) The federal
claims asserted pursuant to 42 U.S.C. Section 1983 in the Third Amended Complaint,
which was the governing pleading at the time of the Offer of Judgment, were claims
for: (1) first amendment retaliation; (2) false arrest; (3) malicious abuse of process; (4)
excessive force; (5) failure to intercede; (6) unlawful search and entry; (7) involuntary
confinement; (8) conspiracy to violates civil rights; (9) substantive and procedural due
process; and (10) Monell-type liability. (Third Amd. Complt; Dkt. # 341 at pp. 42-54.)
3.

All of the time spent on this case, including the time spent regarding the

Medical Defendants, related directly to these ten federal claims, and the plaintiff’s
Acceptance of the Offer of Judgment extinguished all of these federal claims as a
matter of law. (Offer of Judgment at p. 2; Dkt. 541) (acceptance will release and
discharge the City Defendants of any and all claims arising out of the facts and
circumstances of the action). Nothing in the Offer of Judgment limited the scope of
the release of the claims, and nothing in the Offer limited the scope of the obligation to
pay reasonable attorney’s fees (or expenses) for the federal claims. In advising the
plaintiff about the Offer of Judgment, I relied on the broad language about fees, costs
and expenses and to the extent that the City Defendants are now seeking limit the
broad scope of the Offer, they are in effect trying to take back a significant part of the
bargain that was struck when the plaintiff accepted the Offer. Thus, all work and all
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expenses, including the work relating to the Medical Defendants, are fully
compensable.
4. Second, the City Defendants’ claim that the work done in this case was
duplicative is grossly exaggerated. Although we do make certain minor adjustments
relating to having new counsel get up to speed on the case and the second seating at
depositions, there is no merit to the claim that attorneys did duplicative or needless
work and are now double billing. From February 2013 through January 2015, the
Smith group worked on the case exclusively throughout the fact discovery, fact
depositions, expert discovery, expert depositions, and the summary judgment phases,
and during each of those phases of the litigation, I gave each lawyer in our group
discrete tasks to perform, tasks that are specifically described in our contemporaneous
billing records. And when the plaintiff in January of 2015 brought back the
Norinsberg group to gear up for an April 2015 trial estimated by the City Defendants
to last at least two months with well over 50 witnesses, all the pre-trial work was
divided up among the attorneys. We had neither the time nor the willingness to have
two attorneys performing the same tasks, a fact that becomes all the more obvious in
the light of the fact that we were all working on a contingent-fee basis with no
guarantee of payment for our work.
5. Finally, the argument that the plaintiff’s attorneys overworked the case is
belied by the broad scope of the claims in this action and by the fact that the City
3

Defendants fought us tooth-and-nail with a scorched-earth approach throughout this
hard-fought litigation. As the Supreme Court long ago noted, a defendant “cannot
litigate tenaciously and then be heard to complaint about the time necessarily spent by
the plaintiff in response.” City of Riverside v. Rivera, 477 U.S. 561, 580 n.11 (1986).
6. Although the major objections by the City Defendants to the fee application
are meritless, we have made certain adjustments in our billing to address some of the
objections and points raised by the City Defendants. We agree that some adjustment
should be made for the time the Smith group took to get up to speed on the file in
February and March of 2013 (Smith, 54.50 hours; Lenoir, 6.25 hours; Bauza, 18.50
hours, and Suckle, 2.50 hours).6 We also agree that communications with other law
enforcement agencies require an adjustment, and request that my time and Mr.
Lenoir’s time be reduced by 16.95 hours and 13.13 hours, respectively.7 And John
Lenoir has agreed to a reduction of his hourly rate for the time he “second sat” the
depositions we took from $575 an hour to $475 an hour to reflect the observation made
by Magistrate Judge Freeman that a second attorney at depositions is often charged out
at a lower rate.8
7. Accordingly, I respectfully request that the Court award the Smith group the
attorney’s fees, costs and expenses as set for more fully below. I also request that the
6

See Bronsther Report at p. 30; Scheiner Exh. D
See Bronsther Report at p. 39; Scheiner Exh. D.
8
Lenoir Reply Dec. ¶ 12.
7

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Court direct that the award be made directly to the lawyers working with me on this
case because our agreement with the plaintiff provides that in the event of a fee
application all such fees shall be paid directly to us and shall belong to us.
The Factual Misstatements, Distortions and Inadmissible Claims by the City
Defendants’ “Expert.”
8.

Throughout the City Defendants’ memorandum of law and the “expert

report” submitted by Judith Bronsther, there are dozens of factual mistakes, conclusory
claims without back-up, and over-the-top distortions of the facts. To the extent that the
Court finds any credence with these claims, I am submitting this declaration to respond
to each of these claims.
Billing for Secretarial or Clerical Work
9.

In their memorandum and report, the City Defendants claim that I billed my

time at $575 an hour for secretarial and clerical work. (Bronsther Report at p. 8 & 7173; Def. Mem. at p. 25.) The claim is utterly false. On page 72 of the Bronsther
report, Bronsther reprints a list of over three dozen billing entries by “NB,”
erroneously claiming that “NB” refers to me. In fact, the initials “NB” stand for
Nicole Bursztyn, who is a paralegal who works for Jon Norinsberg. My initials are
“NBS,” yet in an apparent rush to sling mud rather than present facts, the City
Defendants and their “expert” -- who claims to be conducting an “audit” -- did not
bother to check the actual billing records that formed the underlying basis for this
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provocative claim. Had the “auditor” done a simple citation check, she would have
realized that the “NB” entities that she re-created for her report were derived from Jon
Norinsberg’s billings for his paralegal, not my billing records. Indeed, in the same
section of the report there is one billing entry that refers to “NBS” and is derived from
my billing records. (Id. at p. 72) (NBS: “preparing documents for client”). That
entry, which pertained to me providing the plaintiff with a status report on thenoutstanding discovery demands and responsive documents produced, would have
informed a genuinely-independent auditor that “NB” did not refer to me and that
“NBS” and “NB” referred to different individuals.
10. While this mistake could be simply written off as a minor clerical error,
when viewed in the light of all the other issues about Bronsther’s report, the mistake
raises serious doubts about the integrity and reliability of any of Bronsther’s claims
and conclusions. We will address these issues in reply on our motion to strike the
Bronsther report, after the City Defendants file their opposition to that motion.
The “Cash” Wire Transfers
11. The City Defendants make the false and inflammatory claim that I wired
cash to the plaintiff and to other “unknown” persons and billed for hotel charges at
times not relevant to this case. (Def. Mem. at p. 2.) This is yet another example of
specious mud slinging without any basis. There is simply no evidence that I or anyone
else in the Smith group wired cash to the plaintiff or any other “unknown” persons for
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stays at hotels or anything else. Although there are two entries contained in Jon
Norinsberg’s billings for the wiring of a small amount for funds ($212 and $329) to the
plaintiff (see Report at p. 17), there is nothing improper about those charges, which
reflect that funds were sent to the plaintiff to cover travel expenses to New York City.
For most of the time this action was pending, the plaintiff was unemployed and living
in an impoverish state with his father in the Southern Adirondacks. On several
occasions, the circumstances of the case required the plaintiff to travel for extended
periods of time to New York City for purposes associated with this action and all of
my travel and all of my meetings with the plaintiff were for that purpose.
My Hourly Rate
12.

The City Defendants argue that my hourly rate of $575 an hour is inflated

and well above the market rate for my services. The City Defendants, I respectfully
submit, are wrong. The Court’s own knowledge and the other evidence submitted in
support of this fee motion shows that my requested rate is with the reasonable range of
market rates for attorneys with similar experience. Moreover, in the past four months
since submitting this fee application I have been retained on two matters that are
relevant to the market rate issue at hand.
13. In the first matter, a successful asset manger retained me and my colleague,
Ms. Magdalena Bauza, last month to analyze the viability of asserting a Section 1983
action in federal court against certain out-of-state tax collection authorities who may
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be abusing their power under state law in violation of the client’s due process rights.
The client is paying me $575 per hour for my time and $150 per hour for Ms. Bauza’s
time, which will be primarily doing the basic Section 1983 legal research, as she did in
this action. While this recent hourly retainer is only one matter, it is a civil rights
retainer for a potential Section 1983 action and as such does provide directly relevant
and objective evidence of what actual hourly rates Ms. Bauza and I can command in
the legal services marketplace in Manhattan for that legal work.
14. In the second matter, which is a corporate litigation between former
shareholders, I was retained this month at the rate of $550 an hour. That rate was
slightly reduced by me to that rate because $550 an hour was the rate that the client’s
corporate counsel, who referred the matter to me, was charging the client. Again, while
this is also only one matter, it does provide further support that my request rate is
reasonable and within the range of market rates for attorneys with my level of
experience.9

9

The City Defendants argue that I should have produced the retainer agreement with the plaintiff in
this case to support my assertion that the default rate provided for in that agreement was $575 per
hour. Similarly, they will likely argue that I should have attached the retainer agreements with these
other recent clients. I resist doing so out of respect for the confidences and privacy of my clients.
Since any such production would require substantial redactions, it makes little sense to provide copies
of these redacted documents, which would necessarily have to redact out authenticating information.
Nevertheless, in the event that the Court is willing to receive these documents for in camera
inspection by the Court I will provide them in camera.
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The Complexity of This Action
15. The City Defendants argue that this was a “simple” case involving one
plaintiff about an isolated event on October 31, 2009 and that the case should have
been handled with less document and deposition discovery. The City Defendants
could not be more wrong.
16. The Court’s extensive summary judgment decision, detailing the complex
facts and legal issues in this action, demonstrates that this was not a simple run-of-themill civil rights or employment lawsuit. The plaintiff was harassed by his superiors
for over a year prior to the dramatic events of October 31, 2009, when they broke their
way into his home, assaulted him, declared him a dangerous and emotional disturbed
person, and forcibly took him to Jamaica Hospital in handcuffs, where he was further
abused by them and held involuntarily as a dangerous and mentally ill person for a
week. And upon his release, the NYPD pursued the plaintiff upstate to his father’s
home where he had retreated, only to be further harassed, monitored and videotaped
over the course of the next six months. Hundreds of witnesses and dozens of
important events relevant to liability and damages issues occurred during the two-year
period from the summer of 2008 when the plaintiff was first formally criticized in his
performance evaluation for failing to satisfy the quota through the summer of 2010
when the NYPD’s spying and harassing conduct upstate ceased. (See generally

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Summary Judgment Decision, date May 5, 2015, at pp. 6-77; Dkt. # 436)
(summarizing the facts).
17. While those basic facts are complex, the underlying reasons for the NYPD’s
actions against the plaintiff are even more complex, requiring specialized and expert
information about why and how the NYPD wanted to manipulate the statistics
downward on certain violent crimes and at the same time maintain and enforce a quota
system City-wide for stops-and-frisks and arrests for lower level or “quality-of-life”
crimes. Thus, this action raised serious questions about whether and how the NYPD
was engaging in a “numbers game” to manipulate downward the reported number of
serious crimes occurring in the City of New York to make the City appear safer to the
public than the actual numbers justified. This action also raised serious questions
about whether and how the NYPD was engaging in a systematic “stop-and-frisk
campaign” that was driven by an illegal quota system. Indeed, these institutionallydriven motivations in large part explain the very strong reasons why the NYPD wanted
to discredit and retaliate against the plaintiff as the “rat” who broke from the pack and
made official complaints about illegal downgrading and quota practices, thereby
threatening to expose to the public these NYPD practices. This evidence was also
central to the plaintiff’s Monell claims, which also hinged on the NYPD’s policies and
practices.

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18.

In the light of this background, the City Defendants’ after-the-fact

argument now about the legal cost and extent of document and deposition discovery is
meritless. The number of witnesses identified for discovery and for trial is proof alone
that this was not just a simple event case requiring just a few depositions, as the City
Defendants now causally suggests. The plaintiff’s pleadings and the plaintiff’s Rule
26(a) initial and supplemental disclosures identified 57 individual individuals with
knowledge relevant to the claims and defenses in this action. (See Third Amended
Complaint; Dkt. # 341; Plaintiff’s Initial and Supplemental Disclosures at pp. 002 &
010-011; attached as Smith Reply Exh. 1.)

The City Defendants’ initial and

supplemental disclosures (with overlap) identified 49 individuals with knowledge of
the claims and defenses in this action. (City Defendants’ Initial and Supplemental
Disclosures; Smith Reply Exh. 1 at pp. 004, 014-016, 020-021, 035, 037-038, 042 &
045.) And the City Defendants’ co-defendant, Deputy Inspector Mauriello, who was
initially represented by the Law Department and then separately represented by
conflict counsel, Walter Kretz, identified 79 witnesses in his responses to an
interrogatory seeking the identity of witnesses with knowledge. (Id. at p. 048-049.)
19. Similarly, the Joint Pre-Trial Order in this case demonstrates that this was
far from a “simple” case.

On August 14, 2015, just prior to the second scheduled trial

date, the defendants’ version of the Joint Pre-Trial Order estimated that the trial would
last 40 trial days. (JPTO at p. 12; Dkt. # 477-1.) In that document, the plaintiff listed
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56 witnesses and 184 exhibits (id. at pp. 13-14 & 20-22), and the City Defendants
listed (with overlap) 41 witnesses and 96 exhibits (id. at 14-15 & 27-33). The other
NYPD defendant, Deputy Inspector Mauriello also listed (with overlap) 81 witnesses
and 242 exhibits (id. at 15-17 & 33-41). Finally, the Medical Defendants collectively
listed 19 witnesses and 5 exhibits (id. at 17-18 & 41-42). Given the number of
expected witnesses and complex issues in this case, 40 trial days could have easily
have become a gross understatement.
20. The City Defendants and their “expert” also claim that the plaintiff’s
attorneys spent “too much” time reviewing the audio and video evidence in this case.
Since the current Law Department attorney (the latest of nine Law Department
attorneys who appeared in this action) only became involved in this case about a year
ago and since the City Defendants so-called “expert” admittedly did not review any of
this evidence, it appears that the City Defendants do not have any actually knowledge
of the magnitude of the audio and video evidence in this case. Over the past weekend I
spent four hours (on a non-billable basis) reviewing the data contained in the plaintiff’s
digital discovery files, which show the number of witnesses, the number of recordings
and the length of each recording or video. The facts are important.
21. As a result of the allegations made by the plaintiff about downgrading,
quotas and retaliation, the NYPD conducted two extensive internal investigations. The
first investigation was conducted by the Quality Assurance Division (“QAD”) into the
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downgrading claims made by the plaintiff, and during the course of that investigation
QAD interviewed 43 witnesses. (Smith Reply Exh. 2; QAD Report at pp. NYC 516162.)10 The second investigation was conducted by the Internal Affairs Bureau
(“IAB”), and during the course of that investigation, IAB interviewed 59 witnesses.
(Smith Reply Exh. 2; IAB Index Worksheet at NYC 10107, 08, 10-18.)11 Since the
NYPD’s practices generally required that these interviews be recorded, the discovery
record of these interviews included digital copies of the recordings. My discovery
files contain 71 separate tape-recorded interviews totaling 25.96 hours of recordings
for these witness interviews.
22. In addition, soon after the plaintiff moved upstate, the Brooklyn North
Investigations Unit also conducted its own “investigation” of the plaintiff, which
included extensive video surveillance on the plaintiff and his father in, at, or outside
their upstate residence. During the course of discovery, the NYPD produced 58
separate video clips of this surveillance (identified as M2U078.mpg through
M2U151.mpg) totaling 43.66 minutes of total video time taken over the course of three
months.
23. Since the downgrading and stop-and-frisk policies relevant to the action
emanated from the top brass at the NYPD, the Court directed the production of
10

The QAD report and the IAB Worksheets are being submitted to the Court under seal because
those documents are subject to a protective order in this action.
11
The IAB Index Worksheet identifies the interviews of member of the NYPD, using the term “PG”
to refer to the formal and tape recorded process under the Patrol Guide for conducting interviews.
13

relevant recordings of COMPSTAT session times when any one of the central
defendants (Deputy Chief Marino, Deputy Inspector Mauriello, and Captain
Lauterborn) appeared at a COMPSTAT session. In total we obtained, reviewed and
studied 37 separate COMPSTAT sessions with a total elapse time of 105 hours.
24. Finally, the discovery record in this case consisted of all the recordings that
the plaintiff took or obtained over the course of the time he was subject to retaliation.
The plaintiff produced recordings for 118 separate roll calls during the years 2008 and
2009 with a total elapse time of 16.43 hours. The plaintiff also produced 71 separate
recordings totaling 31.79 hours for specific events that occurred during that same
period, including supervisor’s meetings at the 81st Precinct; meetings or telephone calls
with NYPD doctors and investigators; discussions with union and others about the
appeal of his 2008 failing evaluation; the events of October 31, 2009; and the events
upstate when NYPD officials repeatedly banged on his door, demanding entry.
25. I have marshaled these facts because they demonstrate that the City
Defendants’ claims about this case being a “simple” case that was needlessly overlitigated by plaintiff’s counsel are without merit.
The Results Achieved
26. Although settled law holds that the most critical factor in a District Court’s
determination of what constitutes reasonable attorney’s fees is the degree of success

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obtained by the plaintiff, 12 the City Defendants’ opposition papers (including a 90
page memorandum and a 295 page “expert” report), fail to address this critical factor.
The plaintiff’s success in this case – a recovery worth more than $2.0 million -justifies a full fee for all the hours that plaintiff’s counsel reasonably spent in this
heavily litigated case.
27. The Judgment against the City Defendants achieved, without the risk of trial,
the following for the plaintiff:
• $600,001.00 in cash;
• back pay for the six-year period from October 31, 2009 through
December 31, 2015, in the total amount of $602,287.10;
• reinstatement to the NYPD as a Police Officer and the dismissal of
all pending charges against him;
• vested pension benefits with a current or present value of about
$603,680;
• life-time medical benefits worth $7,236 a year for the plaintiff’s
lifetime, based on the City of New York’s current out-of-pocket
costs for that benefit;
• recovery for all costs and expenses of the action, including
reasonable attorney’s fees;
• discharge of all claims by Counterclaim Defendant Mauriello
against the plaintiff; and
• The opportunity to apply, as a vested pension beneficiary, for
ordinary disability pension benefits that would increase the
plaintiff’s annual pension benefit from $30,334 a year on a taxable
basis to $50,772 on a non-taxable basis with the right to receive
those benefits in 2016 as a opposed to receiving regular retirement
benefits commencing as of 2022.

12

Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008) (quoting
Farrar v. Hobby, 506 U.S. 103, 114 (1992)).
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28. These benefits have a total current value to the plaintiff of at least $2.0
million dollars, which is in my opinion well above the sustainable level of damages in
a case like this.13 Since the results achieved exceeded the amount that the plaintiff
was reasonably likely to obtain in the event that he prevailed at trial, the attorneys
working on behalf of the plaintiff achieved without risk of loss at trial an “excellent
result.” Accordingly, the Court should award the plaintiff a full lodestar recovery
without any discount beyond those amounts that ought to be adjusted in the exercise of
sound billing judgment, as set forth below.
The Division of Responsibilities in This Action
29. The City Defendants and their expert repeatedly make conclusory claims
without any foundation or factual basis for their assertion that the plaintiff’s attorneys
billed twice for the same work or needlessly were duplicative in their work on the
plaintiff’s behalf.

With one minor exception, the City Defendants are wrong.

30. It is correct that the Norinsberg group handled this action from its inception
until the end of 2012 and that the file was transferred to the Gilbert group. It is also
correct that over the course of the next five months John Lenoir and I became the
13

One of the major components of the plaintiff’s damages was his involuntary commitment at
Jamaica Hospital for six days. Our research shows that the maximum sustainable damages for that
claim are in the range of $500,000 to $900,000. See Marion v. LaFargue, 2004 U.S. Dist. Lexis 2601
(S.D.N.Y. Feb. 25, 2004) (reducing $1.0 million award to $150,000 for six days involuntarily
commitment at Bellevue as excessive due to the plaintiff’s prior psychiatric history, noting that cases
generally award in the range from $75,000 to $150,000 per day, depending on the circumstances);
Ruhlmann v. Smith, 323 F. Supp. 2d 356 (N.D.N.Y. 2004) (summarizing damages awards in
involuntarily hospitization cases and reducing 1.0 million verdict to $450,000 for four days
involuntary commitment).
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senior lawyers working on the case extensively for the next two and a half years and
that the lawyers who formed the Gilbert group became less involved in the prosecution
of the action. As a result, there were several hours that the Smith group did spend
reviewing the file to get up to speed, and accordingly we agree to adjust our requested
hours to compensate for this objection. These hours, which are termed the “cost of
substitution” are estimated to be 54 hours for me, 18.5 hours for Ms. Bauza, 6.25 hours
for Mr. Lenoir and 2.5 hours for Mr. Suckle,14 and at the end of our reply papers is a
table, listing the Smith group’s proposed compensable hours and reflecting these
adjustments.
31. There are, however, several other matters raised by the City Defendants and
their expert that are incorrect. First, Ms. Bronsther claims that “the Plaintiff changed
legal teams five (5) times.”15 As noted above, that is a gross exaggeration of the facts.
32. More substantively, Ms. Bronsther claims that the Norinsberg and the Smith
groups failed to divide up the pre-trial and trial preparation work in this case and
engaged in duplicative effort. That is incorrect. The Norinsberg group exclusively
handled the case from its inception through the end of 2012 and the Smith group was
handled the case exclusively from early 2013 until January of 2015, when the plaintiff
brought back the Norinsberg group to gear up for a trial that was scheduled to begin in
April of 2015 and expected to last two months. Clearly, there was no duplication
14
15

Scheiner Dec. Exh. D; Bronsther Report at p. 30.
Id. at p. 4.
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between the two groups during these times, other than the time we spent getting up to
speed on the matter, an adjustment we agree to make to this application.
33. For the period from February 2015 through September 2015, when both
groups were very busy getting ready for a trial (first set for April 2015 and then
adjourned to October 2015) we agreed that with at least 25 to 35 likely witnesses to be
called on the plaintiff’s case and cross-examined on the defendants’ case, division of
labor was precisely what the case required. Accordingly, the four attorneys who we
planned to have speaking roles in the case (Jon Norinsberg, Gerald Cohen, John Lenoir
and me) divided up the witness list so that each one of us would focus our own
attention to our assigned witnesses. In addition, Josuha Fitch took on the lead role in
prepared and opposing the numerous motions in limine; Magdalena Bauza focused her
attention on the jury instructions and the preparation of detailed time lines for trial, and
I took on a lead role for the pre-trial order and preparing and opposing the various
motions for reconsideration, which were filed shortly after the Court issued on May 5,
2015 its Summary Judgment Decision. There was no duplicative effort to get ready for
trial, and nothing in any of the billings support that bald conclusory claim by Ms.
Bronsther.
34. Ms. Bronsther also claims that there was duplication of effort between the
Norinsberg and Smith groups in connection with the summary judgment papers. She
is wrong, and the specific event that she uses to support this otherwise conclusory
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claim does not support the claim. In her report, Ms. Bronsther claims that Gerald
Cohen and Jon Norinsberg billed 3.8 hours on the preparation of the consolidated Rule
56.1 Statements filed by the plaintiff in connection with the six summary judgment
motions.
35. In fact, I prepared the two consolidated 56.1 Statements. The first one, filed
on February 11, 2015, contained the defendants’ contentions of fact with evidentiary
support and each of the plaintiff’s responses and counter-statements with evidentiary
support. The second one, filed on March 6, 2015, set forth and consolidated the
plaintiff’s contentions of fact with evidentiary support and each of the defendants’
responses and counter-statements with evidentiary support.

The two documents,

which totaled 256 pages, were an extensive statement of the parties’ contentions of fact
and the evidentiary support for each such contention. As such, I told Mr. Norinsberg
and Mr. Cohen that they should review these documents because they collected in one
place the evidentiary support for the defendants’ numerous factual contentions.
Neither of them had any role in the preparation of these documents or any of the other
summary judgment papers, a task that was performed by the Smith group.
The Complaints About the Depositions and the Deposition Digests
36. The City Defendants argue that it was wasteful for both me and Mr. Lenoir
to attend those depositions that we took in this case. Mr. Lenoir more specifically
addresses this objection in his accompanying reply declaration. In short, it is common
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practice for two attorneys to work together at depositions, and our assessment and
understanding of the case was greatly improved by having us both present for the
depositions. While an additional attorney is obviously helpful during the midst of an
examination, it is also of great value to have more than one set of eyes evaluating the
testimony of a witness for trial.
37. On the other hand, the City Defendants do correctly point out three
typographical errors in my billings regarding the depositions and with great fanfare
greatly overblow the significance of these errors. On page 57 of the Bronsther Report,
she points out that my April 23, 2014 billing entry states “Drafting opposition to
Jamaica Hospital motion for protective order; prepare for and attend examination
before trial of Bernier.”16 That is my error because the Bernier deposition took place
several months earlier, and the deposition that I was preparing for that day was the
examination of 81st Precinct Sergeant Sawyer.17
38. Attached as Smith Reply Exhibit 3 is a true and correct copy of my original
time sheet for that day, which states in full “Schoolcraft - drafting opp to Jam Hosp
motion for protective order; prep for ebts.” On the same page is a note by my assistant
on a post-it, reflecting that she made an entry that same day in the billing software for
the cost of the Bernier deposition. In fact, the expense portion of my billing records
16

Scheiner Dec. Exh. D; Report p. 56
Sergeant Sawyer was the officer who double cuffed the plaintiff at Jamaica Hospital on the
morning of November 1, 2009 and personally informed Defendant Mauriello that same morning that
Jamaica Hospital doctors involuntarily committed the plaintiff earlier that day.
17

20

reflect that on April 23, 2014, my assistant made an entry for “Bernier Dep Tr.” for
$2,238.70 for the cost of that deposition transcript.18 Thus, it is clear to me that the
billing sheet for April 23rd simply contains a data entry error and that I spent the time
that day preparing for the Sawyer deposition, which was taken two days later, not the
Bernier deposition.
39. The Bronsther Report also points out that my billing entry for September
17, 2015 states that I prepared for and took the Purpi deposition on that day when in
fact the deposition was held on another day. Attached as part of Smith Reply Exhibit 3
is a true and correct copy of my original billing sheet, which reflects that I spent one
hour that day on “prep for Purpi ebt.” Thus, the mistake was that the transcribed entry
states that I also attended the deposition that day, when in fact it is undisputed that I
attended the deposition on another date. Thus, this is merely another data entry error.
Similarly, the third identified billing entry for September 19, 2015 states that on that
day I prepared for and attended the Carrasco deposition, when in fact it was the Purpi
deposition that I took that day.
40. Since the billed work was actually done and the transcripts of the
depositions plainly reflect that fact, I do not believe that these three typographical
errors require any deduction for the work. More important, these isolated data entry
errors are insignificant in the light of the fact that I worked on this case steadily over
18

Smith Dec Exh. 1; Billing Sheets at p. 38.
21

entire period from February 2013 through October 2015, logging in about 600 separate
daily entries for my time and expense charges.
41. The City Defendants also claim that the work done by the paralegals in
summarizing the deposition testimony should not be compensated. Without any basis
whatsoever, Ms. Bronsther states that the digests were not used in this case and that
“clients” will not pay for digests. Ms. Bronsther, once again, is simply wrong. As the
primary author of most of the papers submitted in connection with the summary
judgment motions I can specifically attest to my extensive use of those deposition
digests. Indeed, for at least a solid month I carried with me wherever I went a single
binder containing all the digests, and I repeatedly read and referred to them over the
course of the winter of 2014-15, when I was writing the summary judgment motion
papers.
42. Ms. Bronsther is also simply wrong when she states that billing for
deposition digest in not an acceptable practice because of the ability to scan a
deposition transcript. Word indexes have been around the practice of law since at least
the mid-1980s when I worked as a litigation clerk for a larger New York City firm
before and while attending law school. And my thirty years of experience since
confirms that in large and complex cases deposition digests are a common, if not
prevailing practice. In fact, Magistrate Judge Francis issued a fee application decision
in 2010 where he awarded a senior attorney his time charges for digesting deposition
22

transcripts at a reduced rate for a junior attorney ($200 an hour).19 Thus, the objection
about deposition digests should be rejected.
43. Based on the billing adjustments mentioned above, I request that the Court
grant this motion in accordance with the following table:
Attorney Total Hours Cost of Substitution Law Enforcement Contacts Hourly Rate

Adjusted Hours

Adjusted Bill

Smith

2217.5

54.5

16.95

$575

2146.05

$1,233,978.70

Lenoir

1281

6.25

13.13

$575

1261.62

$706,481.5020

Bauza21

1287

18.5

0

$150

1268.5

$190,275.00

Suckle

108.9

0

0

$575

108.9

$62,617.50

McCutcheon 23.38

0

0

$250

23.38

$5,845.00

Paralegals

442.18

0

0

$125

442.18

$55,272.50

Expenses

$135,235.75

$135,235.75

Total

$2,389,705.95

Conclusion
44. For the foregoing reasons, the reasons set forth in the accompanying
memorandum of law, and the supporting exhibits and declarations, I request that the
Court grant this application for fees, costs and expenses.
Dated: April 29, 2015
s/NBS
________________,________
Nathaniel B. Smith
19

Zahrey v City of New York, 98-cv-4546 (DCP) (JCF) (S.D.N.Y. June 8, 2010); SDNY Dkt. # 264 at
p. 37.
20
As noted in Lenoir’s reply declaration, he has agreed to reduce his hourly rate to $475 for 189.5
hours second seating the depositions in this case, thereby reducing his bill $18,950 from $725,431.50
to $706,481.50.
21
Ms. Bauza is a law graduate.
23