Hundley v. Frunzi et al

Filing 86

ORDER granting in part and denying in part 79 Motion for Attorney Fees. Plaintiff's application for attorney fees and expenses (ECF No. 79) is granted in part and denied in part, and Plaintiff is awarded fees and expenses in the total amount of $179,762.53. Signed by Hon. Charles J. Siragusa on 1/6/2025. (MJK)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
CRUSHAUN HUNDLEY,
vs

Plaintiff,

20-CV-6150 (CJS)(MWP)
DECISION and ORDER

A. FRUNZI, Correction Officer, et al.,
Defendants.
_________________________________________

INTRODUCTION
Plaintiff, an inmate in the custody of the New York State Department of Corrections
and Community Supervision (“DOCCS”), commenced this action pursuant to 42 U.S.C. §
1983, alleging that the defendant corrections officers subjected him to excessive force
and retaliation. Following a jury trial, the jury found for Plaintiff on the retaliation claim
and awarded him compensatory damages in the amount of $20,000.00, and punitive
damages in the amount of $80,000.00. Defendants thereafter filed a motion for a new
trial, which the Court denied. Defendants then appealed, but the U.S. Court of Appeals
for the Second Circuit denied the appeal and affirmed the jury’s award of damages. Now
before the Court is Plaintiff’s motion for attorney fees pursuant to 42 U.S.C. § 1988, ECF
No. 79, which Defendants partially oppose.

For the reasons explained below, the

application is granted in part and denied in part.
BACKGROUND
The reader is presumed to be familiar with the underlying facts of the case and
with the papers submitted in connection with the fee application.

1

Briefly, Plaintiff’s

attorneys, the law firm of Sivin, Miller & Roche, LLP (“SMR”), initially sought an award for
fees, utilizing the lodestar approach, in the amount of $173,654.25, and for expenses, in
the amount of $6,880.13. (As discussed below, Plaintiff later revised the fee amount
upward slightly in his Reply, to account for additional time expended on the fee
application). The requested fee is for work performed by attorneys Edward Sivin (“Sivin”),
Glenn Miller (“Miller”), David Roche (“Roche”), and their legal assistants Jake Ethé
(“Ethé”), Katie Sinise (“Sinise”), and Stephanie Leibowitz (“Leibowitz”).
The proposed hourly rate for Sivin, Miller, and Roche is $400/hour each, while the
proposed rate for Ethé, Sinise, and Leibowitz is $175/hour, $100/hour, and $100/hour,
respectively. Sivin, Miller and Roche have 42 years, 39 years, and 28 years, respectively,
of litigation experience. Ethé has approximately 6.5 years of experience, while Sinise
and Leibowitz each have less than two years of experience.
Time records submitted with the initial fee application detail a total of 388.05 hours
expended by Sivin, Miller, and Roche, and 88.34 hours expended by Ethé, Sinise, and
Leibowitz, covering pretrial and discovery, the trial, the post-trial motion, the appeal, and
preparation of the fee application. Miller and Roche also list an additional twenty hours
of travel time, billed at $200/hour.
Plaintiff has submitted supporting declarations from four attorneys, one of whom is
a former Acting Attorney General in Charge of the Rochester Office of the New York State
Office of the Attorney General, two of whom are experienced plaintiff’s civil rights
attorneys, and one of whom is a former supervisor in the Office of the New York City

2

Corporation Counsel, all attesting to Plaintiff’s attorneys’ high degree of skill and good
reputation within the field of civil rights litigation. 1
Plaintiff generally argues that the fee application should be granted since he was
the prevailing party in a difficult 2 and lengthy Section 1983 action, and since the fees and
expenses being sought were necessary and reasonable in the prosecution of the lawsuit,
and are commensurate with fee awards made to civil rights attorneys and legal assistants
in the Western District of New York with comparable experience and expertise. More
specifically, Plaintiff contends that the $400/hour rate requested by Sivin, Miller, and
Roche is reasonable based not only on their experience but on fee awards made in this
District in similar cases to attorneys with less experience. For example, Plaintiff contends
that “in January of 2009, this Court declared reasonable a requested rate of $350 per
hour to a civil rights attorney with approximately ten fewer years’ experience at the time
to that of Sivin and Miller, and approximately equal to that of Roche[.]” 3

Plaintiff

emphasizes that while Sivin, Miller, and Roche LLP is located in Manhattan, the fee
application does not seek an out-of-district rate (which, for attorneys in New York City
with comparable experience could be as high as $807/hour) but, rather, is based upon
past awards in this District.

For example, former New York State Assistant Attorney General Gary Levine states that if a
member of his family need counsel on a civil rights matter he “would refer them to Sivin and
Miller,” ECF No. 79-2 at p. 4, while civil rights attorney P. Jenny Marashi asserts that Sivin “may, in
fact, be one of the most skilled and experienced attorneys currently practicing civil rights [law] in
almost every single venue in NY state.” ECF No. 243-2 at p. 4.
2
Plaintiff emphasizes the “undesirable” nature of his claim, inasmuch as it was a Section 1983
prisoner claim turning largely only the credibility of a mentally-ill plaintiff with a history of making
threats against corrections officers who was admittedly carrying an illegal weapon at the time of
the incident.
3
ECF No. 79-19 at p. 6.
1

3

Defendants partially oppose the application, arguing primarily that “this was not a
complex case” and that the requested hourly rates exceed what is reasonable for the
Western District. More specifically, Defendants state that they “do not dispute that each
of the partners of the firm are very experienced and well-respected litigators,” but contend
that “since they chose to take a case in the Western District,” “they should be
compensated at the prevailing hourly rate of $300.00 per hour.” Further, Defendants
assert that the requested hourly rates for Ethé, Sinise and Leibowitz are too high, and
should be reduced below $100/hour, purportedly since $100/hour is the prevailing rate in
this district for paralegals and none of the SMR paralegals “have specialized legal training
as a legal assistant or paralegal.”
Defendants further maintain that some of the time entries are either inconsistent
or too vague to enable the Court to conduct a meaningful review, such as time entries
labeled “more work on motion papers, “more work on submissions,” and “trial prep.”
Defendants have not specifically objected to Plaintiff’s requests for travel or litigation
expenses.
Plaintiff has submitted a reply, in which he insists that the $400/hour rate for the
attorneys is reasonable, and that all the listed hours are “supported, reasonable, and not
excessive.” Plaintiff further indicates that Defendants are wrong to claim that he is
seeking out-of-district rates, since he maintains that the requested rates are
commensurate with past awards in the Western District. Indeed, Plaintiff states that if he
was seeking “out-of district rates in this case, [he] would be requesting a[n attorney] rate
of $650-700 per hour, which is [the] current rate in the Southern District of New York,
where SMR[‘s offices are located], rather than the $400 per hour rate [requested] in

4

connection with this case.” Plaintiff further indicates that Defendants’ suggestion that this
was not a complex case is belied by the record and the arguments raised in Defendants’
unsuccessful post-trial motion and appeal. Plaintiff also contends that the caselaw upon
which Defendants have relied to argue for a $300 prevailing hourly attorney rate in this
District is not controlling here, since the attorneys in those cases had less experience
than Sivin, Miller, and Roche. Plaintiff similarly maintains that Defendants’ argument
concerning the hourly rates for the paralegals is incorrect, since a certificate in paralegal
studies or similar training is not a requirement to recover fees by persons competently
performing paralegal tasks. Additionally, Plaintiff insists that the challenged time entries
are not vague when considered in context. Finally, Plaintiff notes that since the original
fee application was filed, Sivin and Ethé have been required to expend additional time in
support of the application (1.3 hours and 9.44 hours, respectively).
The Court has carefully considered the parties’ submissions.
DISCUSSION
Plaintiff has requested an award of fees and expenses pursuant to 42 U.S.C. §
1988, and the legal principles applicable to such an application are well settled:
Section 1988(b) of Title 42 of the United States Code permits courts to
award reasonable attorney's fees and costs to the prevailing party in an
action brought under 42 U.S.C. § 1983. See Lamberty v. Conn. State Police
Union, No. 21-1275, 2022 WL 319841, at *3 (2d Cir. Feb. 3, 2022)
(summary order). “Courts award attorney's fees according to the
‘presumptively reasonable fee’ (or ‘lodestar’) method, calculated as the
product of the reasonable number of hours worked and a reasonable hourly
rate.” Agudath Israel of Am. v. Hochul, No. 22-38, 2023 WL 2637344, at *1
(2d Cir. Mar. 27, 2023) (summary order) (quoting Arbor Hill Concerned
Citizens Neighborhood Ass'n v. Cnty. of Albany & Albany Cnty. Bd. of
Elections, 522 F.3d 182, 183-84 (2d Cir. 2008), as amended (Apr. 10,
2008)).2 “[A] court must first set a reasonable hourly rate for each attorney
and staff member, keeping in mind all case-specific variables.” Nnebe v.
5

Daus, No. 06-CV-4991, 2022 WL 612967, at *3 (S.D.N.Y. Mar. 1, 2022).
“Second, the court must determine the number of hours reasonably
expended.” Id. “Third, it must multiply the reasonable hourly rate by the
number of hours reasonably expended to determine the ‘presumptively
reasonable fee.’” Id. “After this calculation is performed, a district court may,
in extraordinary circumstances, adjust the presumptively reasonable fee,
but only when it does not adequately take into account a factor that may
properly be considered in determining a reasonable fee.” Robles v. City of
N.Y., No. 19-CV-6581, 2021 WL 1034773, at *4 (S.D.N.Y. Feb. 26, 2021),
report and recommendation adopted, 2021 WL 1177462 (S.D.N.Y. Mar. 29,
2021).
“The degree of success achieved by the plaintiff is the most critical factor in
a district court's determination of what constitutes reasonable attorney's
fees in a given case.” Najera v. Kurtishi, No. 21-CV-1309, 2024 WL 180867,
at *3 (S.D.N.Y. Jan. 17, 2024). Furthermore, it is well settled that “[t]he
essential goal in shifting fees ... is to do rough justice, not to achieve auditing
perfection.” Fox v. Vice, 563 U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45
(2011); see Restivo v. Hessemann, 846 F.3d 547, 589 (2d Cir. 2017). Thus,
“trial courts may take into account their overall sense of a suit, and may use
estimates in calculating and allocating an attorney's time.” Fox, 563 U.S. at
838, 131 S.Ct. 2205.
***
“The determination of reasonable hourly rates is a factual issue committed
to the court's discretion, and is typically defined as the market rate a
‘reasonable, paying client would be willing to pay.’” Amaprop Ltd. v.
Indiabulls Fin. Servs. Ltd., No. 10-CV-1853, 2011 WL 1002439, at *6
(S.D.N.Y. Mar. 16, 2011) (quoting Arbor Hill, 522 F.3d at 190)), aff'd, 483 F.
App'x 634 (2d Cir. 2012) (summary order). “In determining what rate a
paying client would be willing to pay, the district court should consider,
among others, the Johnson factors[; it should also bear in mind that a
reasonable, paying client wishes to spend the minimum necessary to litigate
the case effectively.” Arbor Hill, 522 F.3d at 190. “The party seeking fees
bears the burden of demonstrating that its counsel's rates are reasonable”
by “produc[ing] evidence, in addition to the attorneys’ own affidavits, that
the rates are consistent with prevailing rates in the District for lawyers of
comparable skill, experience and reputation.” Torres v. City of N.Y., No. 18CV-3644, 2020 WL 6561599, at *4 (S.D.N.Y. June 3, 2020), report and
recommendation adopted, 2020 WL 4883807 (S.D.N.Y. Aug. 20, 2020).

6

“Complex cases requiring particular attorney skills and experience may
command higher attorney rates.” Torres, 2020 WL 6561599, at *4.
Magalios v. Peralta, No. 19-CV-6188 (CS), 2024 WL 1856303, at *1–2 (S.D.N.Y. Apr. 26,
2024) (footnote omitted).
In the instant case, the Court has considered the foregoing factors and finds, at
the outset, that the SMR firm obtained excellent results for its client, in what was a difficult
case to prove for the reasons enumerated by Plaintiff. Further, the Court agrees with
Plaintiff that an hourly rate of $400/hour for Sivin, Miller, and Roche is reasonable in light
of each of the attorney’s extensive trial experience and reputation and the result they
obtained for their client.
Preliminarily, on this point the Court finds no merit to Defendants’ suggestion that
the proposed attorney rate of $400/hour reflects rates in the Southern District. Indeed,
the Court takes judicial notice of the fact that in a case appearing to present a similar
degree of evidentiary difficulty, 4 Maglios v. Peralta, cited earlier, a Southern District of
New York Judge recently awarded Sivin and Miller each $650/hour, which is below the
rate of $800/hour they had requested in that case, but which is still far above the rate they
are requesting here.
The Court is also unpersuaded by Defendants’ assertion that $300/hour is
necessarily the upper-limit attorney rate in the Western District for this type of action. On
this point, the Court is aware of caselaw from this District containing language that
supports Defendants’ position. For example, in Ortiz v. Stambach, decided in February
2023, a Judge of this Court indicated that, “In the Western District of New York, the

For example, in both cases the Plaintiff’s faced significant evidentiary challenges as well as the
risk that the State of New York would not indemnify the defendants.

4

7

prevailing hourly rate for an experienced attorney in a civil rights matter is typically no
more than $300 per hour, while less experienced attorneys typically have rates of no more
$200 per hour.” Ortiz v. Stambach, 657 F. Supp. 3d 243, 267 (W.D.N.Y. 2023).
However, a few months after that decision, the same Judge approved an in-district
rate of $350/hour for a civil rights attorney with far less experience than either Sivin, Miller,
or Roche. See, Meeks v. City of Rochester, No. 6:22-CV-6163 EAW, 2023 WL 3962828,
at *4 (W.D.N.Y. June 12, 2023) (“Mr. Shields himself does not possess decades of legal
experience. Plaintiff's submission does not specify the exact length of time Mr. Shields
has been practicing law, but it does note that he was in law school in 2011 and his law
firm website identifies him as an associate attorney and 2012 law school graduate. The
issues in this case were relatively straight-forward and not particularly complex, and the
time and labor expended by counsel in this case with respect to the motion was not
considerable. Accordingly, the Court is not persuaded that there was no in-district
attorney capable of successfully handling the matter. For these reasons, the Court
agrees with recent cases in this District that have awarded Mr. Shields an hourly rate of
$350 per hour.”) (citations to record omitted.). 5

In doing so, the Court in Meeks also cited another Western District decision, McGaffigan v. City of
Rochester, which recognized that that hourly rates above $350 had been approved in some cases.
See, McGaffigan v. City of Rochester, No. 21-CV-6545-FPG, 2023 WL 415098, at *5 (W.D.N.Y. Jan.
5

26, 2023) (“[A] top-end of $500 per hour has also been found reasonable in the Western District.
See New York v. Grand River Enters. Six Nations, Ltd., No. 14-CV-910, 2021 WL 4958653, at *4
(W.D.N.Y. Oct. 26, 2021)”). Indeed, as far back as 2016, another Judge of this District approved an
hourly rate of $425/hour for civil-rights attorneys who, while described by the court as “highly
experienced,” also had less experience than Sivin, Miller or Roche. See, Peacock v. City of
Rochester, No. 6:13-CV-6046-MAT, 2016 WL 4150445, at *7 (W.D.N.Y. Aug. 5, 2016) (“Based on the
Court's survey of the caselaw, and given their particular expertise in these matters, it finds that
$425 per hour is an appropriate rate for the highly experienced attorneys (Attorney Thompson
from ETKS and Attorney Brustin from NSB) who litigated this case[.]”). (According to information
obtained from the SuperLawyers website, at the time of Judge Telesca’s decision in Peacock,
attorneys Donald M. Thompson and Nick Brustin had been admitted to practice law for 29 years
and 20 years, respectively). In McGaffigan, the Court ultimately approved an hourly rate of $350,
8

Additionally, a few months after that, the same Judge found that an hourly rate of
between $400-500 for an experienced civil rights attorney was consistent with the
prevailing market rate in the Western District. See, P3 v. Hilton Cent. Sch. Dist., No. 6:21CV-06546 EAW, 2023 WL 7326048, at *6 (W.D.N.Y. Nov. 7, 2023) (“[T]he Court is familiar
with the prevailing hourly rates charged by similarly situated counsel in this legal
community. See, e.g., Capax Discovery, Inc. v. AEP RSD Investors, LLC, Case No. 1:17cv-00500-CCR, 2023 WL 140528, at *6 (W.D.N.Y. Jan. 10, 2023) (collecting cases and
stating that “[i]n the Western District, $400-$500 per hour is generally deemed a
reasonable hourly rate for experienced trial counsel”); State of New York v. Grand River
Enterprises Six Nations, Ltd., 14-CV-910A(F), 2021 WL 4958653, at *4 (W.D.N.Y. Oct.
26, 2021) (explaining that hourly rate of $200-$500 was reasonable depending upon
attorney's level of experience); c.f. Busrel Inc. v. Dotton, No. 1:20-cv-01767, 2022 WL
17075707, at *3 (W.D.N.Y. Nov. 18, 2022) (explaining that “[t]he rate of $825 is not a
reasonable hourly rate for attorneys in the Western District of New York and substantially
exceeds the typical forum rate,” and reducing hourly rate to $450, which is reasonable for
experienced attorneys in this district).”); see also, Xerox Corp. v. Conduit Glob., Inc., No.
21-CV-6467-EAW-MJP, 2024 WL 3548411, at *15 (W.D.N.Y. July 26, 2024) (“In the
Western District, $400–$500 per hour is generally deemed a reasonable hourly rate for
experienced trial counsel.”) (citations omitted).

but also implied that it might have approved an even higher hourly rate for two of the three
attorneys, based on their greater experience, but for the fact they had played only a limited role in
the litigation. See, McGaffigan, 2023 WL 415098 at *6 (“The Court concludes that $350 per hour is
reasonable for all three of Plaintiff's attorneys[.] . . . A higher rate could be justified for Attorneys
Roth and Thompson because of their experience, but they played a more limited, less demanding
role in this litigation—providing strategic and other advice to Attorney Shields.”).
9

In the instant case, having considered the relevant factors and the caselaw cited
earlier, the Court finds that the requested hourly rate of $400 is a reasonable and
appropriate in-district rate for Sivin, Miller, and Roche, each of whom is a very
experienced trial attorney.
The Court now considers the hourly rates for the paralegals. Plaintiff maintains
that Ethé, Sinise, and Leibowitz should receive $175/hour, $100/hour, and $100/hour,
respectively, and that the higher hourly rate for Ethé is “merited because [of] his ability to
produce work-product on par with junior attorneys.” Defendants, meanwhile, assert that
those rates are too high, and should be reduced below $100/hour,” purportedly “since
$100/hour is the prevailing rate in this district for paralegals, and since none of the
paralegals has “specialized legal training as a legal assistant or paralegal.”
The Court agrees that the requested paralegal rates should be reduced, at least
with regard to Ethé. In this regard, Plaintiff’s requested rate for Ethé exceeds even what
Ethé was recently awarded in the Southern District, which clearly has much higher
prevailing rates than the Western District. See, Stanbro Palou Stanbro v. Westchester
Cnty. Health Care Corp., No. 19-CV-10857 (KMK), 2024 WL 1214560, at *5 (S.D.N.Y.
Mar. 21, 2024) (“Plaintiff states that Ethé now has over five years of experience at S&M,
has worked on dozens of similar cases, and has developed significant legal research
skills. Considering his experience and training, the Court finds that a rate of $150 is
appropriate.”); accord, Maglios v. Peralta, 2024 WL 1856303 at *6 (awarding Ethé an
hourly rate of $150); see also, id. (awarding Sinise $100/hour). Accordingly, the Court
reduces Ethé’s hourly rate to $140, which is more in line with the prevailing rate for
experienced paralegals in this District. See, e.g., Xerox v. Conduit Global, Inc., 2024 WL

10

3548411 at *16 (awarding in-district paralegal rate of $140/hour). On the other hand, the
Court sees no need to reduce Ethé’s rate below that, or to reduce Sinise’s or Leibowitz’s
rates below the $100/hour rate that Plaintiff has requested. On this point, Defendants
assert that the prevailing rate for paralegals is $100/hour, but argue that SMR’s paralegals
should receive less than that, since they do not have specialized training as paralegals.
However, such lack of specialized training has not prevented courts from awarding SMR’s
paralegals the prevailing in-district rate. See, e.g., Magalios v. Peralta, 2024 WL 1856303
at *6 (“Because Sinise has less experience [than Ethé,], the Court agrees that her rate
should be lower, but not lower than the prevailing range[.]”).
In sum, the Court finds that in calculating a lodestar amount, an hourly rate of $400
should be used for Sivin, Miller, and Roche, and hourly rates of $140, $100, and $100
should be used for Ethé, Sinise, and Leibowitz, respectively.
As for the number of allowable hours billed, the Court declines to reduce the hours
submitted by Plaintiff. In that regard, while Defendants maintain that “some of the time
records are vague or inconsistent,” the Court finds that they are neither inconsistent nor
too vague to allow meaningful review.
Based upon the foregoing, including the supplemental amounts referenced in
Plaintiff’s Reply, the Court makes the following determination as to fees: For Sivin, Miller,
and Roche: 389.35 hours x $400/hour = $155,740.00. For Miller and Roche travel: 20
hours x $200/hour = $4,000.00. $ For Ethé: 84.11 hours x $140/hour =$11,775.40. For
Sinise: 10.6 hours x $100/hour = $1,060.00. For Leibowitz: 3.07 hours x $100/hour =
$307.00. For litigation expenses: $6,880.13. Total fees and expenses: $179,762.53.

11

CONCLUSION
For the reasons discussed above, Plaintiff’s application for attorney fees and
expenses (ECF No. 79) is granted in part and denied in part, and Plaintiff is awarded fees
and expenses in the total amount of $179,762.53.
IT IS SO ORDERED.
DATED:

January 6, 2025
Rochester, New York
______________________
CHARLES J. SIRAGUSA
United States District Judge

12