Circuit remanded the case for further proceedings regarding the plaintiffs' claim for attorney's fees and costs pursuant to 42 U.S.C. §§ 1983 and 1988. On November 14, 1994, the United States Supreme Court denied the defendant's petition for a writ of certiorari.
A. The Plaintiffs' Fee Application
The plaintiffs seek attorneys' fees in the amount of $ 77,510.00 and costs and disbursements in the amount of $ 3,686.27, together with post judgment interest. The plaintiffs' fee application represents compensation to its attorneys, the Law Offices of Michael T. Wallender, for a total of 399.1 attorney hours and 10.5 paralegal hours expended in litigating this case. The fee application encompasses the three and one half year period from May, 1991 until November, 1994. The litigation in this case consisted of the following phases: (1) commencement of the action in May, 1991 and discovery until February, 1993, (2) motions by both parties for summary judgment submitted in February, 1993 and argued before this Court on April 2, 1993; (3) appeal by the plaintiffs from this Court's September 30, 1993 Order denying their motion for summary judgment and granting the defendant's motion for summary judgment dismissing the complaint; (4) reversal by the Second Circuit on June 24, 1993 and remand for determination of the fee plaintiff's application; and (5) petition by the defendant for a writ of certiorari, which was denied on November 14, 1994. The plaintiffs note that their fee application does not include (1) charges for travel time, (2) dual billing for conferences between attorneys within the firm representing the plaintiffs, (3) time expended on legal theories other than the First Amendment claim on which the plaintiffs prevailed, and (4) hours expended by plaintiffs' local counsel Howard G. Goldson, a specialist in real estate law who spent approximately 30 hours on the case.
B. The Defendant's Objections
The defendants argue that the fees sought by the plaintiffs should be reduced by fifty per cent in light of the fact that they did not prevail on all of the claims asserted in the action. Specifically, the defendant contends that the plaintiffs are not the prevailing party with respect to First Amendment challenges to New York Real Property Law § 442-h and 19 NYCRR § 175.17(a), as the Second Circuit did not reverse this Court's determinations that Section 442-h is facially constitutional and that 19 NYCRR § 175.17 did not interfere with the plaintiffs' First Amendment rights. The defendant notes that the Second Circuit reversed this Court's decision only to the extent of holding that 19 NYCRR § 178, promulgated under NYRPL 442-h to establish nonsolicitation areas in four New York counties, was violative of the plaintiffs' First Amendment rights. The Second Circuit stated,
We caution, however, that our decision today is a narrow one, limited solely to the record before us. As should be clear from the discussion above, we do not reach the question of whether under certain facts and circumstances and under a different record, the Secretary night be able to justify some type of nonsolicitation regulation pursuant to section 442-h.