problem; (3) the time and labor expended; (4) counsel's experience, ability and reputation; (5) the customary fee charged for similar services; and (6) the amount involved. Mar Oil, S.A., 982 F.2d at 841.
Accordingly, counsel are hereby directed to contact the court to schedule a hearing to determine the fees, if any, to which defendants are entitled. Notwithstanding the fact that defendants have conceded they have no contemporaneous records documenting the time spent in representing Mr. Wong, Kennedy Aff. P 18, at the hearing, it will be defendants' burden to document their application for fees with records detailing the dates, hours expended and nature of the work done by each attorney. 520 E. 72nd Commercial Corp., 691 F. Supp. at 739 (citing New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983); see also F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987) ("Where adequate contemporaneous [time] records have not been kept, the court should not award the full amount requested."); Matter of Estate of Jackson, 120 A.D.2d 309, 315-16, 508 N.Y.S.2d 671, 676 (3d Dep't 1986) (noncontemporaneous record that failed to specify services performed or time expended was insufficient to support fee application), appeal denied, 69 N.Y.2d 608, 507 N.E.2d 322, 514 N.Y.S.2d 1026 (1987). Obviously, in light of these standards, defendants' argument that Mr. Wong somehow is at fault for failing to request an accounting at the time he discharged defendants is unavailing.
With respect to plaintiff's application for an order directing defendants to provide him with an accounting of the $ 10,000 escrow account and/or entering judgment for plaintiff in the amount of $ 8,500, at this juncture it appears that plaintiff is satisfied with the underlying documents defendants have produced in connection with $ 1,187 of the amounts expended, but finds the documents produced in connection with $ 8,500 in expenditures deficient.
See Sussman Reply Aff. P 4. More specifically, plaintiff alleges that a check for $ 2,500 dated August 3, 1990 payable to Charles Kelly and a check for $ 6,000 dated September 25, 1990 payable to Lawrence Schoenbach and bearing the notation "close out Wong a/c" lack "any corresponding bills or any indication whatsoever justifying the expediture of plaintiff's funds" and thus represent only a "half-hearted gesture [by defendants] to fulfill their fiduciary responsibilities." Sussman Reply Aff. P 4 & Ex. B.
As discussed above, it is counsel's burden to keep adequate and contemporaneous records reflecting work performed and, by logical extension, expenditures made in connection with that work. The court agrees with plaintiff that defendants have failed to satisfy this burden with respect to the payments in the amount of $ 8,500 described above. At oral argument, counsel for defendants advised the court that Mr. Schoenbach is in possession of documents underlying the payment of the $ 6,000; defendants are hereby directed to obtain this information from Mr. Schoenbach and to provide it to plaintiff. If plaintiff remains unsatisfied with the documentation provided with respect to the $ 6,000 (or with respect to the $ 2,500 paid to Charles Kelly), he may renew his application for the return of those funds.
In sum, the court grants plaintiff's motion for summary judgment to the extent that it declares the Retainer Agreement unenforceable. However, the court declines to enter judgment in favor of plaintiff in the amount of $ 75,000, but rather orders a hearing to determine the reasonable value of any services defendants actually rendered on behalf of plaintiff. Defendants also are ordered to provide a more detailed accounting to plaintiff of the $ 8,500 expended from the escrow account.
Dated: Brooklyn, New York
May 23, 1994
I. LEO GLASSER, U.S.D.J.