The opinion of the court was delivered by: CANNELLA
Plaintiffs' motion for attorneys' fees, costs and disbursements is granted in the amount of $ 76,418.33. 42 U.S.C. § 1988; 28 U.S.C. § 1920; Fed.R.Civ.P. 54(d).
Plaintiffs commenced this class action under 42 U.S.C. § 1983 seeking to enjoin defendants from enforcing, and to declare unconstitutional, certain amendments to the New York State Department of Social Service Regulations, 18 N.Y.C.R.R. § 358.8(c)(1) (promulgated February 15, 1977), which excluded childless and employable recipients of Home Relief assistance from further payments prior to a hearing. On April 19, 1977, by order to show cause, plaintiffs moved for a temporary restraining order and a preliminary injunction. The Court issued the temporary restraining order on that date, and on April 22, 1977 conducted a hearing on plaintiffs' motion for a preliminary injunction.
On May 3, 1977, the Court granted plaintiffs' motion, finding that section 358.8, as amended, was
violative of the procedural due process requirements enunciated by the Supreme Court in Goldberg v. Kelly, 397 U.S. 254 (90 S. Ct. 1011, 25 L. Ed. 2d 287) (1970), in that it allows termination of Home Relief benefits prior to a fair hearing where issues of fact and judgment may be in controversy.
Hurley v. Toia, 432 F. Supp. 1170, 1178 (S.D.N.Y.), aff'd mem., 573 F.2d 1291 (2d Cir. 1977). On the same date, the Court determined that the suit was properly maintainable as a class action, and granted plaintiffs' motion for class certification.
Defendants appealed the Court's May 3, 1980 decision to the Court of Appeals for the Second Circuit and, while the appeal was pending, plaintiffs' attorneys moved to intervene three more named plaintiffs and to expand the size of the class. Because of the pendency of the appeal, the Court denied this motion on June 17, 1977. Plaintiffs then moved before the Court of Appeals to remand the matter to this Court so that plaintiffs' latest motion could be considered. On June 27, 1977, the Second Circuit remanded the case to this Court and, on July 8, 1977, the Court granted the motion to intervene, expanded the size of the class, and broadened the scope of the preliminary injunction accordingly. Also on July 8, 1977, the Court denied defendants' motion for a stay of the preliminary injunction pending appeal. On October 19, 1977, the Court's decision of May 3, 1977 was affirmed. Hurley v. Toia, 573 F.2d 1291 (2d Cir. 1977).
The parties then commenced trial preparation that was to last more than one year. Both sides conducted extensive discovery and plaintiffs at one point moved to compel answers to certain interrogatories. On May 10, 1978, Magistrate Sinclair, while denying plaintiffs' motion to compel, stated that defendants' "bald assertions of burdensomeness and unavailability of data are not particularly persuasive," and established a mechanism by which plaintiff could obtain the information requested. Memorandum Order at 2 (filed May 10, 1978). In July 1978, the parties entered into settlement negotiations and, on January 16, 1979, executed a stipulation of settlement, which the Court approved on March 7, 1980. At that time, the Court stated that the settlement "essentially provides the plaintiff class with the very relief sought in the complaint in this action."
Memorandum and Order at 2, 77 Civ. 1877 (S.D.N.Y. Mar. 7, 1980).
On April 8, 1980, plaintiffs filed a motion for an award of attorneys' fees, costs and disbursements. The Court conducted an evidentiary hearing on September 8, 1980, at which the six attorneys who represented plaintiffs until the approval of settlement, all of whom were employed by Mid-Hudson Legal Services, Inc. ("Mid-Hudson") when they rendered these services,
testified. Plaintiffs' attorneys on the fee application, Herbert Teitelbaum and Richard O. Berner of Teitelbaum & Hiller, P.C. ("T&H"), also testified at the hearing.
Defendants oppose the award of attorneys' fees on several grounds: (1) plaintiffs cannot be considered prevailing parties under section 1988 as to the entire award sought; (2) the time records of the Mid-Hudson attorneys are defective because they were not contemporaneously kept or adequately reconstructed; (3) the hours claimed by the Mid-Hudson attorneys are duplicative, excessive and unwarranted; (4) the hours claimed by the T&H attorneys are not compensable because these attorneys performed legal services under a contingent fee arrangement between T&H and Mid-Hudson, and because they are duplicative, excessive and unwarranted; and (5) the rates of compensation requested by plaintiffs' attorneys exceed the reasonable value of their services.
Section 2 of the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 ("section 1988"), provides in pertinent part: "In any action or proceeding to enforce a provision of (section) ... 1983 ... of this title, ... the court, in its discretion, may allow the prevailing party ... a reasonable attorneys fee as part of the costs." The Supreme Court recently removed any remaining doubt as to whether, for purposes of this section, there is a prevailing party in a class action disposed of by settlement, stating:
The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees. Nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated. Moreover, the Senate report expressly stated that "for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." S.Rep. No. 94-1011, p. 5 (1976), U.S.Code Cong. & Admin.News 1976, p. 5908.
Maher v. Gagne, 448 U.S. 122, 100 S. Ct. 2570, 2575, 65 L. Ed. 2d 653 (1980). Defendants argue, however, that plaintiffs cannot be considered prevailing parties as to the entire award sought because they did not prevail in every aspect of the litigation. Thus, defendants claim that plaintiffs' attorneys, at best, are entitled to an award only for those hours reasonably expended "on issues on which plaintiff(s) in fact prevailed or which were necessary to (their) obtaining that status." Defendants' Post-Hearing Memorandum of Law at 6 (filed Sept. 22, 1980) ("Defendants' Memo"). Defendants point specifically to three aspects of the litigation in which they claim plaintiffs were unsuccessful: (1) plaintiffs' application for a class-wide temporary restraining order, brought on by order to show cause on April 19, 1977; (2) plaintiffs' motion in June 1977 to permit the intervention of three new named plaintiffs, to amend the prior class certification, ...