S.S.(1) et al v. New York City Department of Education

Filing 57

OPINION AND ORDER re: 20 MOTION for Attorney Fees . filed by S. S.(1). For the foregoing reasons, the Court OVERRULES Plaintiffs' objections to the R&R and ADOPTS the R&R in full. The Clerk of Court is respectfully directed t o (1) terminate Dkt. No. 20; and (2) enter judgment in favor of Plaintiffs in the amount of $36,433.40, consisting of $23,208.80 in attorney's fees incurred in the underlying administrative proceeding, $12,638.00 in attorney' s fees incurred in the instant federal action, $586.60 in costs, plus post-judgment interest; and (3) CLOSE the case. SO ORDERED. (Signed by Judge Margaret M. Garnett on 3/6/2025) (kv) Transmission to Finance Unit (Cashiers) for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

3/6/2025

S.S.(1), Individually and on Behalf of S.S.(2), a
Minor,
Plaintiffs,
23-CV-08913 (MMG)

-against-

OPINION & ORDER

NEW YORK CITY DEPARTMENT OF
EDUCATION,
Defendant.
MARGARET M. GARNETT, United States District Judge:

On October 11, 2023, Plaintiff S.S.(1), individually and on behalf of S.S.(2), a minor
child, brought this action pursuant to the fee-shifting provisions of the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(3), seeking an award of attorneys’ fees
and costs. Before the Court is the Report and Recommendation (Dkt. No. 55, the “R&R”) of the
Honorable Jennifer E. Willis, which recommends granting Plaintiffs’ motion for attorneys’ fees
and costs in the reduced amount of $36,433.40, plus post-judgment interest. On February 7,
2025, Plaintiff filed objections to the R&R (Dkt. No. 56, the “Objections” or “Obj.”).
For the reasons stated herein, the Court OVERRULES Plaintiffs’ objections to the R&R
and ADOPTS the R&R in full.
BACKGROUND
This decision assumes familiarity with the factual background and procedural history,
which are summarized in the R&R. The facts relevant to Plaintiffs’ objections are below.
I.

ADMINISTRATIVE PROCEEDINGS
On April 31, 2021, Plaintiffs requested a due process hearing, seeking an order directing

Defendant (“DOE”) to fund S.S.(2)’s tuition to Gersh Academy for the 2019-2020 and 20201

2021 school years, and fund independent evaluations, assistive technology, and compensatory
services. Dkt. No. 27 (“Joint 56.1 Statement of Facts”) ¶ 9. On July 12, 2022, the parties
appeared before an impartial hearing officer (“IHO”) for a hearing on the merits of Plaintiffs’
due process complaint. Id. ¶ 12. Plaintiffs presented three witnesses and 47 exhibits. Id. ¶¶ 13–
15. DOE did not present a case but cross-examined one of Plaintiffs’ witnesses. See id. ¶ 16.
On July 18, 2022, 1 Plaintiffs submitted a twenty-one-page closing brief, and DOE did not submit
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a closing brief. Id. ¶¶ 17–19. On September 26, 2022, the IHO issued a decision in favor of
Plaintiffs, including finding that S.S.(2) was denied a Free and Appropriate Public Education
(“FAPE”). See id. ¶ 20; R&R at 5. It is uncontested that Plaintiffs are the prevailing party.
R&R at 5.
II.

FEDERAL ACTION
On October 11, 2023, Plaintiffs initiated this action for attorneys’ fees and costs. See

Dkt. No. 1. On February 28, 2024, DOE made an offer of settlement of $20,800.00, which
Plaintiffs rejected. See R&R at 3. On March 26, 2024, Plaintiffs moved for attorneys’ fees. See
Dkt. No. 20. On January 30, 2025, Judge Willis issued the R&R. On February 7, 2025,
Plaintiffs filed their Objections. See Dkt. No. 56.
First, as to hourly rates, the R&R recommends hourly rates of $410 for Andrew and
Michael Cuddy, $300 for Francesca Antorino, $200 for Benjamin Kopp, and $125 for all
paralegal work. R&R at 9. Plaintiff generally objects to the R&R, arguing that the R&R applied
“historical rates rather than looking at this matter individually” and failed to take into
consideration two recent cases—J.H. v. New York City Department of Education and E.L. v. New

Paragraph 17 of the Joint 56.1 Statement of Facts appears to have a typo, indicating that the
closing brief deadline set by the IHO was July 18, 2023, not 2022.
1

2

York City Department of Education—when determining the reasonable hourly rates. Obj. at 2.
Plaintiff also lodges specific objections to the rates recommended by the R&R:
•

Andrew and Michael Cuddy: Plaintiff argues that Judge Willis did not provide any
analysis supporting why Andrew and Michael Cuddy, with twenty-three and fifteen years
of experience in IDEA matters, respectively, should “receive a rate $90-$140/hr lower
than were awarded to attorneys in E.L. and J.H.” See Obj. at 3.

•

Benjamin Kopp: Plaintiff argues that Judge Willis’ recommended reduction to Mr.
Kopp’s rate is inappropriate in light of discretionary reductions already applied by the
Cuddy Law Firm, noting that “Mr. Kopp is more senior than Ms. Antorino yet [Judge
Willis recommends] award[ing] Mr. Kopp $100/hr less for his work.” See Obj. at 3.

•

Francesca Antorino: Plaintiff argues that Judge Willis does not indicate how she came to
the recommended reduced rate for Ms. Antorino and does not justify why her rate “would
be at the lowest end of the spectrum” set forth in E.L., given Ms. Antorino’s involvement
in the special education legal community. See Obj. 3–4.

•

Paralegals: Plaintiff argues that Judge Willis similarly failed to justify why the
recommended reduced rate for paralegals was on the lowest end of the spectrum set forth
in J.H., given Ms. Cuddy, Ms. Reeve, Ms. O’Donnell, and Ms. Kinney-Angotti’s
qualifications. See Obj. at 4.
Second, as to the number of hours reasonably expended, Plaintiff generally objects to the

recommended “20% reduction on both the administrative and federal court matters,” based upon
an erroneous application of the Johnson factors and the evidentiary record. See Obj. at 4.
Specifically with respect to the hours expended in the administrative proceeding, Plaintiff
analogizes the facts of this case to J.H., and contends that the amount of preparation time spent
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was not excessive because The Cuddy Law Firm “had to prepare as if the matter was contested
and lay a record for both the impartial hearing officer to render a decision and lay the foundation
should the matter go to appeal.” Obj. at 5. Further, Plaintiff justifies the amount of time spent
preparing the closing brief in order to “address[] the applicable law and the facts of the case
together” and complying with the deadline set by the Impartial Hearing Officer. Obj. at 5.
DISCUSSION
I.

STANDARD OF REVIEW
A reviewing court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district court
“may adopt those portions of the report to which no ‘specific, written objection’ is made, as long
as the factual and legal bases supporting the findings and conclusions set forth in those sections
are not clearly erroneous or contrary to law.” Adams v. N.Y. State Dep’t of Educ., 855 F. Supp.
2d 205, 206 (S.D.N.Y. 2012) (quoting Fed. R. Civ. P. 72(b)), aff’d sub nom. Hochstadt v. N.Y.
State Educ. Dep’t, 547 F. App’x 9 (2d Cir. 2013) (summary order). A district court need only
satisfy itself that “no clear error [is apparent] on the face of the record.” See, e.g., Candelaria v.
Saul, No. 18-cv-11261 (JMF), 2020 WL 996441, at *1 (S.D.N.Y. Mar. 2, 2020).
A district court must conduct a de novo review of any portion of the report to which a
specific objection is made on issues raised before the magistrate judge. See 28 U.S.C. §
636(b)(1); United States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015). “When a party makes
only conclusory or general objections, or simply reiterates the original arguments made below, a
court will review the report strictly for clear error.” Espada v. Lee, No. 13-cv-08408 (LGS),
2016 WL 6810858, at *2 (S.D.N.Y. Nov. 16, 2016) (internal references omitted).

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II.

REASONABLE HOURLY RATES
Under the IDEA, “the 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,” based on
“rates prevailing in the community in which the action or proceeding arose for the kind and
quality of services furnished.” 20 U.S.C. §§ 1415(i)(3)(B)–(C). To calculate a “presumptively
reasonable fee,” a district court first determines the appropriate billable hours expended and sets
a “reasonable hourly rate.” Lilly v. City of N.Y., 934 F.3d 222, 230 (2d Cir. 2019). “Such fees
must be reasonable and based on rates prevailing in the community in which the action or
proceeding arose for the kind and quality of services furnished.” S.J. v. N.Y.C. Dep’t of Educ.,
No. 21-240-cv, 2022 WL 1409578, at *1 (2d Cir. May 4, 2022). In determining an appropriate
hourly rate, a court should consider, “all pertinent factors, including the Johnson factors.” Lilly,
934 F.3d at 230 (discussing Johnson v. Ga. Hwy. Express Inc., 488 F.2d 714, 717–19 (5th Cir.
1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 109 (1989)). These
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 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.
Id. at 228. “A district court need not recite and make separate findings as to all twelve Johnson
factors, provided that it takes each into account in setting the attorneys’ fee award.” A.G. v.
N.Y.C. Dep’t of Educ., No. 20-cv-07577 (LJL), 2021 WL 4896227, at *4 (S.D.N.Y. Oct. 19,
2021). In making this determination, a court should step “into the shoes of the reasonable,
paying client, who wishes to pay the least amount necessary to litigate the case effectively.”
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O.R. v. N.Y.C. Dep’t of Educ., 340 F. Supp. 3d 357, 364 (S.D.N.Y. 2018) (quoting Arbor Hill,
522 F.3d at 184). However, “trial courts need not, and indeed should not, become greeneyeshade accountants. The essential goal in shifting fees . . . is to do rough justice, not to
achieve auditing perfection.” C.B. v. N.Y.C. Dep’t of Educ., No. 18-cv-07337 (CM), 2019 WL
3162177, at *5 (S.D.N.Y. July 2, 2019) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)). “[A]
district court may exercise its discretion and use a percentage deduction as a practical means of
trimming fat from a fee application.” M.D. v. N.Y.C. Dep’t of Educ., No. 17-cv-02417 (JMF),
2018 WL 4386086, at *4 (S.D.N.Y. Sept. 14, 2018) (quoting McDonald ex rel. Prendergast v.
Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006)).
Plaintiff primarily relies on J.H. and E.L. in their objections to the reduced rates
recommended by the R&R. These cases do not persuade the Court that the reduced rates
recommended by the R&R are contrary to the prevailing market rates in similar IDEA cases or
otherwise unjustified and unsupported by the evidentiary record in this action. For the reasons
stated herein, the Court adopts the hourly rates recommended by the R&R of $410 for Andrew
and Michael Cuddy, $300 for Francesca Antorino, $200 for Benjamin Kopp, and $125 for all
paralegal work.
In J.H., upon reviewing the Johnson factors, Judge Hellerstein found that the rates of the
lawyers ($325–$550) and the paralegals ($125–$200) were “reasonably in line with market rates
of those practicing in the area, giving regard to the special skill of Plaintiff’s lawyers[,] [the Law
Office of Benjamin J. Hinerfeld and Law Offices of Irina Roller, PLLC.]” No. 23-cv-04763
(AKH), 2024 WL 2330462, at*2 (S.D.N.Y. May 21, 2024). Plaintiff cites to Judge Hellerstein’s
reasoning in declining to impose lower rates, specifically that “inflation has taken hold,
particularly of attorneys’ fees, and it would be unfair to compensate work in th[at] case at the

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lower rates set in previous cases[,] [as] [i]ncentivization requires more liberality.” Obj. at 2
(citing J.H., 2024 WL 2330462, at *2).
J.H. is factually dissimilar from this action. In J.H., unlike here, “[t]he record show[ed]
that the [Department of Education (“DOE”)] resisted Plaintiff’s FAPE claim at every stage,
which entailed Plaintiff’s counsel to prepare for and obtain complete relief at three hearings.”
2024 WL 2330462, at *1. In connection with a reference to Y.G. v. New York City Department
of Education, another case involving similarly heavily contested administrative proceedings,
Judge Hellerstein’s reference to fairly compensating J.H. counsel—taken out of context in
Plaintiff’s citation—was clearly based on the heavily contested nature of the multiple hearings
before DOE.
Similarly, in E.L., although the plaintiffs prevailed in two due process hearings before the
DOE, Judge Subramanian held that the rates sought by the plaintiffs, $350–$550 for the
attorneys and $185–$200 for the paralegals, were unreasonable. No. 23-cv-02560 (AS), 2024
WL 3887154, at *3 (Aug. 21, 2024). Judge Subramanian reasoned that the plaintiffs had not
pointed to any particularly difficult or novel questions involved in the case to justify the rates
sought, and there were inefficiencies in how the matter was conducted, such as work that was
handled by the highest-paid attorneys that could have been done by more junior attorneys or
paralegals. Id. Ultimately, Judge Subramanian held that hourly rates of $500 for the two most
senior attorneys, $350-$450 for the other attorneys, and $150 for the paralegals were reasonable.
Id. at *3–4.
As to Andrew and Michael Cuddy, the recommended $410 hourly rate does fall within
the reasonable range determined in J.H., contrary to what Plaintiffs state in their Objections.
While the $410 hourly rate is shy of the $500 hourly rate determined for the two most senior

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attorneys in E.L., “[p]rior determinations, even for the same attorneys, are not binding, and
[Plaintiffs] offer[] no compelling reason why the Court must adopt the same rates.” See M.D. v.
N.Y.C. Dep’t of Educ., 21-cv-09180 (LGS), 2023 WL 2557408, at *5 (S.D.N.Y. Mar. 17, 2023).
As Judge Willis observed, Plaintiffs have not put forth any evidence that this case was unique or
complex—the underlying administrative proceeding involved a single hearing in which DOE did
not even present a case, but only cross-examined one witness. See R&R at 2, 8. Further, the
recommended $410 hourly rate not only falls well within the prevailing market rate for special
education law attorneys in this District, but numerous courts in this District have recently
approved hourly rates for senior attorneys at the Cuddy Law Firm, including Andrew and
Michael Cuddy, ranging from $400 to $425. See D.S. v. N.Y.C. Dep’t of Educ., No. 22-cv-10641
(GHW) (RFT), 2024 WL 2159785, at *7 (S.D.N.Y. Apr. 29, 2024), report & recommendation
adopted, 2024 WL 2158583 (S.D.N.Y. May 14, 2024) (awarding A. Cuddy $400 per hour); S.C.
v. N.Y.C. Dep’t of Educ., No. 23-cv-01266 (LGS) (JLC), 2024 WL 1447331, at *4–5 (S.D.N.Y.
Apr. 2, 2024) (assigning a rate of $425 to A. Cuddy); V.W. v. N.Y.C. Dep’t of Educ., No. 21-cv02159 (PGG) (KHP), 2023 WL 2609358, at *12 (S.D.N.Y. Mar. 23, 2023) (same); M.D., 2023
WL 2557408, at *4–6 (S.D.N.Y. Mar. 17, 2023) (same); S.B. v. N.Y.C. Dep’t of Educ., No. 23cv-03961 (PAE), 2024 WL 1406559, at *6 (S.D.N.Y. Apr. 2, 2024) (awarding A. Cuddy a rate
of $400 per hour); J.G. v. N.Y.C. Dep’t of Educ., No. 23-cv-00959 (PAE), 2024 WL 728626, at
*8 (S.D.N.Y. Feb. 22, 2024) (awarding M. Cuddy a rate of $400 per hour in a matter spanning
two administrative proceedings); S.H. v. N.Y.C. Dep’t of Educ., 21-cv-04967 (LJL), 2022 WL
254070, at *6 (S.D.N.Y. Jan. 26, 2022) (assigning M. Cuddy a rate of $400 per hour).
Accordingly, given the prevailing market rates for the Cuddy Law Firm and the balance of the

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Johnson factors, the Court finds that a $410 hourly rate is reasonable to award Andrew and
Michael Cuddy.
As to Francesca Antorino, and as noted by Plaintiffs, the recommended hourly rate of
$300 falls within the range of prevailing market rates for the Cuddy Law Firm in IDEA cases,
which is $225-$325 for associates. See Obj. at 3. Recently, in K.K. v. New York City
Department of Education, Judge Furman adopted Judge Figueredo’s recommendation to award
an hourly rate of $200 to Ms. Antorino, who was then a junior associate. No. 23-cv-04430
(JMF) (VF), 2024 WL 4203783, at *8 (S.D.N.Y. Aug. 22, 2024), report & recommendation
adopted, 2024 WL 4203251 (S.D.N.Y. Sept. 16, 2024). Ms. Antorino’s involvement in the
special education legal community seems to go hand-in-hand with the fact that Ms. Antorino is
now a senior attorney, and the Court finds that the recommended hourly rate of $300 takes both
of these aspects into account. Thus, given the prevailing market rates for the Cuddy Law Firm
and the balance of the Johnson factors, the Court finds that a $300 hourly rate is reasonable to
award Francesca Antorino.
As to Benjamin Kopp, Plaintiffs do not cite to any authority dictating that it is
inappropriate or improper to further reduce Mr. Kopp’s hourly rate on top of the discretionary
reductions as to hours billed already applied by the Cuddy Law Firm. While Mr. Kopp is more
senior than Ms. Antorino, as Judge Willis notes “the bulk, if not all, of [Mr.] Kopp’s billing on
this case consists of [internal] phone calls and notes.” See R&R at 9; see, e.g., Dkt. No. 46-3 at
10 2 (listing two, separate 6-minute calls with Ms. Antorino regarding “communications with
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DOE and Court” and “case status” as well as “note[s] to file”). Contrary to Plaintiffs’ assertion,
the recommended hourly rate of $200 does not penalize counsel for “staffing multiple attorneys

2

In reference to PDF pages.

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on a case,” see Obj. at 3, rather, the Court finds that the $200 hourly rate is reflective of the
limited time and labor spent by Mr. Kopp on uncomplicated tasks, as opposed to Ms. Antorino’s
tasks which include more involved endeavors such as drafting filings, for a case that is not
unique or complex in any particular way. Thus, given the balance of the Johnson factors, the
Court finds that a $200 hourly rate is reasonable to award Benjamin Kopp.
Finally, as to the paralegals, Plaintiffs concede that the recommended hourly rate of $125
is within the range of prevailing market rates. Plaintiffs cite to no authority dictating that the
Court must award a higher hourly rate on the basis of the qualifications of Ms. Cuddy, Ms.
Reeve, Ms. O’Donnell, and Ms. Kinney-Angotti’s. Thus, given the prevailing market rates for
the Cuddy Law Firm and the balance of the Johnson factors, the Court finds that a $125 hourly
rate is reasonable to award the paralegals.
III.

HOURS EXPENDED
A fee award should reflect only those hours that were “usefully and reasonably

expended” to achieve victory in the case. Haley v. Pataki, 106 F.3d 478, 484 (2d Cir. 1997)
(internal quotation marks omitted); accord K.E. v. N.Y.C. Dep’t of Educ., No. 21-cv-02815
(KPF), 2022 WL 4448655, at *13 (S.D.N.Y. Sept. 23, 2022). Courts may exercise discretion to
determine the appropriate number of hours to reimburse, removing any billed hours that are
“excessive, redundant, or otherwise unnecessary” in light of the litigation. Quaratino v. Tiffany
& Co., 166 F.3d 422, 425 (2d Cir. 1999); accord N.A. v. N.Y.C. Dep’t of Educ., No. 21-cv-02643
(PGG), 2022 WL 17581774, at *9 (S.D.N.Y. Dec. 12, 2022). “The essential goal in shifting fees
. . . is to do rough justice, not to achieve auditing perfection.” C.B., 2019 WL 3162177, at *5
(internal references omitted).

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Plaintiffs generally object to the 20% reduction of their hours spent for the instant federal
action. Upon reviewing the R&R and evidentiary record, the Court finds that there is no clear
error apparent from the face of the record with respect to the application of a 20% reduction for
hours spent in litigating the federal action.
With respect to the hours spent litigating the administrative proceedings, again, as
discussed supra, Plaintiffs have not established that the prior determination in E.L. of reducing
hours expended by 15% is binding upon the Court in this action. See 2024 WL 3887154, at *2.
Indeed, in similar cases, many courts in this District have reduced the hours billed by the Cuddy
Law Firm by 20% or more. See D.S., 2024 WL 2159785, at *10–11 (recommending across-theboard 20% reduction to hours billed for administrative and federal proceedings among other
specifically-identified reductions); S.C., 2024 WL 1447331, at *7–8 (recommending 20%
reduction in requested hours for administrative proceedings and 25% for federal case since “CLF
has once again excessively billed for boilerplate and/or recycled pleadings”).
Plaintiffs’ attempt to analogize this case to J.H. is unavailing, again, because, as noted in
the R&R and above, this case is dissimilar to J.H.—a case where DOE contested the plaintiff’s
FAPE claim and the parties expended significant time and resources over the course of three
contested administrative hearings. As Plaintiffs acknowledge in their Objections, the R&R
expressly takes into consideration the fact that counsel “had no reason to expect the hearing to be
uncontested and thus preparation is expected.” R&R at 11. Such preparation reasonably
includes “prepar[ing] as if the matter was contested and lay[ing] a record for both the impartial
hearing officer to render a decision and lay[ing] the foundation should the matter go to appeal.”
See Obj. at 5. However, as the R&R notes, Plaintiffs have not justified their 18:1 prep-to-hearing
ratio, especially given that other courts in this District have held that lower ratios are

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unreasonably high. See, e.g., T.P. v. N.Y.C. Dep’t of Educ., No. 22-cv-09413 (PAE), 2024 WL
986587 (S.D.N.Y. Mar. 7, 2024) (“Absent a non-conclusory explanation, a ‘preparation-toproceeding’ ratio of nearly 10:1 is unreasonably high.”).
Similarly, as the R&R notes, Plaintiffs have not justified the 12.7 hours they spent
drafting a closing brief after DOE elected to not put on a case. R&R at 11. The issue is not that
Plaintiffs submitted a closing brief, which Plaintiffs assert was necessary and directed by the
impartial hearing officer. See Obj. at 5. 3 The issue is that Plaintiffs have continued to provide
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no explanation for why it took 12.7 hours to draft the closing brief, which was partially a copyand-paste filing, or why the brief needed to be twenty-one pages long for a case that was
essentially unopposed by DOE, save for one cross-examination of a witness, and that is not
exceptional in any particular regard. See R&R at 11–12.
Accordingly, given the balance of the Johnson factors, the Court finds that a 20%
reduction to the hours spent in both the administrative proceedings and federal action is
reasonable.

Although, of note, DOE did not submit a closing brief, further evidencing that the IHO did not
“direct” the filing of closing briefs, but rather set a schedule for the filing of those briefs, if the parties’
chose to file them.
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CONCLUSION
For the foregoing reasons, the Court OVERRULES Plaintiffs’ objections to the R&R and
ADOPTS the R&R in full. The Clerk of Court is respectfully directed to (1) terminate Dkt. No.
20; and (2) enter judgment in favor of Plaintiffs in the amount of $36,433.40, consisting of
$23,208.80 in attorney’s fees incurred in the underlying administrative proceeding, $12,638.00 in
attorney’s fees incurred in the instant federal action, $586.60 in costs, plus post-judgment
interest; and (3) CLOSE the case.
Dated: March 6, 2025
New York, New York
SO ORDERED.

MARGARET M. GARNETT
United States District Judge

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