the market rates recognized by the Northern District of New
York." See Memorandum of Law in Opposition to Plaintiffs'
Motion for Attorneys' Fees, at 8.
For approximately the last ten years, the highest rates
generally available in the Northern District of New York were
$150.00 per hour for partners with significant experience and
numerous years of practice, $100.00 per hour for associates,
and $50.00 per hour for paralegal work. See, e.g., Serbalik v.
Gray, 1999 WL 34989, *3 (N.D.N.Y. Jan.14, 1999); Marshall v.
State of New York, 31 F. Supp.2d 100, 103-04 (N.D.N.Y. 1998);
Abou-Khadra v. Bseirani, 971 F. Supp. 710, 718 (N.D.N Y
1997), Equal Employment Opportunity Comm'n v. American Fed'n
of State, County and Mun. Employees, 1996 WL 663971, at *7
(N.D.N.Y. Nov.12, 1996). These rates, however, were recently
increased to reflect the prevailing market rates in this
district. TM Park Ave. Assocs. v. Pataki, 44 F. Supp.2d 158,
166-67 (N.D.N.Y. 1999).
Consistent with TM Park, the applicable hourly rate depends
on an attorney's professional experience. Thus, as a general
rule, partners with significant experience and numerous years
of practice are entitled to reimbursement at the hourly rate of
$175.00; associates with four or more years of experience at
the hourly rate of $125.00; and newly-admitted attorneys at the
rate of $100.00 per hour, i.e., attorneys who have been
practicing for three years or less. TM Park Ave. Assocs., at
166-67. The applicable rate for paralegal work remains at $50
In this case, plaintiffs seek hourly fees of $150.00 per hour
for two associates, Kathleen Treasure and Seth Eisenberg.
Treasure has four years of professional experience; thus,
applying the rate structure discussed above, she is entitled to
$125.00 per hour. Eisenberg has less than three years of
experience; thus, he is entitled to $100.00 per hour. Partners
Danziger, Nichols, and Hogan, will each be compensated at the
rate of $175.00 per hour, as attorneys with significant
experience as well as numerous years of practice.
ii. Reasonable Hours
To recover attorneys' fees, the party must support the
application with contemporaneous time records of work
performed. See Lewis v. Coughlin, 801 F.2d 570, 577 (2d Cir.
1986). If the court determines that certain claimed hours are
"excessive, redundant, or otherwise unnecessary . . . the court
should exclude those hours in its calculation of the lodestar."
Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998)
(citations omitted). Importantly, "in making this examination,
the district court does not play the role of an uninformed
arbiter but may look to its own familiarity with the case and
its experience generally as well as to the evidentiary
submissions and arguments of the parties." Id. (citations
Plaintiffs' attorneys from the law firm of O'Connell and
Aronowitz submitted such contemporaneous time records.
Specifically, it requests compensation for a total of 529.6
hours for its services, representing work distribution among
its attorneys as follows: 26 to Danziger; 112.6 to Nichols;
319.2 to Treasure; 16.7 hours to Eisenberg; and 55.1 hours for
law clerk assistance.
Plaintiffs' attorneys at the Hogan law firm did not submit
contemporaneous time records. The Hogan firm seeks compensation
for 88.5 hours, which represents 44.5 hours for attorney Hogan,
42 hours for an associate, and 2 hours for paralegal work.
While defendants have submitted objections to the hours
requested by plaintiffs' attorneys, only some of them merit
discussion. See, e.g., Lunday v. City of Albany, 42 F.3d 131.
134 (2d Cir. 1994) (district court not required to "set forth
item-by-item findings concerning what may be countless
objections to individual billing items."). Not surprisingly,
defendants first assert that because the Hogan firm
failed to submit contemporaneous time records, its time must be
disallowed in its entirety.
In New York State Assoc. for Retarded Children. Inc. v.
Carey, 711 F.2d 1136, 1148 (2d Cir. 1983), the Second Circuit
had such difficulties in calculating attorneys' fees due to the
lack of contemporaneous records that they announced a new
Hereafter, any attorney — whether a private practitioner or an
employee of a nonprofit law office — who applies for
court-ordered compensation in this Circuit for work done after
the date of this opinion must document the application with
contemporaneous time records. These records should specify, for
each attorney, the date, the hours expanded, and the nature of
the work done.
see also N.S.N. Intern. Indus. N.V. v. E.I. Du Pont De
Nemours. & Co., 1996 WL 154182, at *3 (S.D.N.Y. Apr.3, 1996).
Thus, in the absence of contemporaneous time records, an
application for fees must be disallowed pursuant to 42 U.S.C. § 1988.
See, e.g., Carey, 711 F.2d at 1154 "[A]pplications for
attorneys' fees . . . should normally be disallowed unless
accompanied by contemporaneous time records indicating. for
each attorney, the date, the hours expended, and the nature of
the work done."); Riordan v. Nationwide Mutual Fire Ins. Co.,
977 F.2d 47, 53 (2d Cir. 1992) (noting that in the Second
Circuit, failure to keep contemporaneous time records "results
in the denial of the motion for fees."). Consequently, the
Hogan firm's reconstruction of its prior legal services is
inadequate for compensation pursuant to 12 U.S.C. § 1988.
Plaintiffs assert, in the alternative, that the Hogan firm can
be compensated pursuant to N.Y.C.P.L.R. § 8601 (McKinney's
Supp. 1999), the so-called State "Equal Access to Justice Act."
Section 8601(a) provides that "a court shall award to a
prevailing party, other than the state, fees and other expenses
incurred by such party in any civil action brought against the
state, unless the court finds that the position of the state
was substantially justified or that special circumstances make
an award unjust." Section 8602(d)(i) of the C.P.L.R. defines an
eligible "party" as "an individual whose net worth, not
including the value of a homestead used and occupied as a
principal residence, did not exceed fifty thousand dollars at
the time the civil action was filed."
In this case, the prerequisites for recovery under § 8601 are
met; namely, that plaintiffs are both an eligible "party" and a
"prevailing party," and the State's position was not
"substantially justified." See Carroll, 988 F. Supp. at
195-96. The State, in fact, does not contest any of these
The remaining question is whether New York mandates
contemporaneous time records for recovery under the Equal
Access to Justice Act. Section 8601(c) provides, inter alia,
that a party must submit "an itemized statement from every
attorney . . . for whom fees or expenses are sought stating the
actual time expended." New York courts have interpreted § 8601
as providing for more flexibility than the federal statute,
42 U.S.C. § 1988. Rourke v. New York State Dept. Of Correctional
Services, 245 A.D.2d 870, 666 N.Y.S.2d 765, 768 (3d Dep't
1997); Riordan, 977 F.2d at 53. That is, even in the absence
of contemporaneous time records, state courts have permitted an
award of attorneys' fees under § 8601. See, e.g., Rourke, 666
N YS.2d at 768. For example, most recently in Rourke, the
Third Department reasoned that despite the fact that
plaintiffs' attorneys had submitted only reconstructed time
records, some compensation was reasonable in light of the
attorneys' undisputed contributions to the success of the
litigation. Thus, Rourke allowed for the recovery of
attorneys' fees, albeit applying a 50% reduction to the amount
In the present case, like Rourke. there is no dispute that
the Hogan firm contributed valuable services to the success
of plaintiffs' suit. Additionally, Hogan's affidavit
reconstructs with adequate specificity the matters the firm
handled. A review of the time allocated for the nature of the
work performed is reasonable. Some compensation is just under
these circumstances. The Hogan firm's application seeks
reimbursement at the hourly rate of $200 per hour for Hogan's
time, and requests total compensation for legal fees in the
amount of $13,180. Taking into account the absence of
contemporaneous time records, and after applying the proper
rate of $175 per hour for Hogan's time, I find that the Hogan
firm is entitled to recover the reduced amount of $7,000 under
New York's Equal Access to Justice Act.
With respect to the law firm of O'Connell and Aronowitz,
defendants assert that its time entires lack sufficient detail.
As support, its brief contains what purports to be a summary of
the firms' inadequate time entries. Oddly though, defendants'
citations to plaintiffs' time records are incomplete. For
instance, they cite plaintiffs' entry of 6/5/97 as providing
only one word: "research." See Def. Memorandum of Law in
Opposition to Plaintiffs' Motion for Attorneys' Fees, at 11. In
fact, plaintiffs' actual entry is as follows: "KMT Legal
research; draft motion for summary judgment. Meeting re:
research, research into affirmative defenses asserted in case —
Abstention Doctrine Comity." In short, the firm's time records
are sufficiently detailed.
iii. Summary of Lodestar Calculation
In sum, then, applying the disallowances discussed above, the
lodestar figure for the law firm of O'Connell and Aronowitz is
26 hours x $175.00 per hour = $4,550.00
112.6 hours x $175.00 per hour = $19,705.00
319.2 hours x $125.00 per hour = $39,900.00
16.7 hours x $100.00 per hour = $1,670.00
55.1 hours (clerk) x $50.00 per hour = $2,755.00
Therefore, the total lodestar figure for O'Connell and
Aronowitz is $68,580.00.
The Hogan firm is awarded fees in the reduced amount of
$7,000.00 for the reasons previously noted.
Once the lodestar amount is calculated, there is a strong
presumption that this figure constitutes a reasonable amount.
See, e.g., City of Burlington v. Dague, 505 U.S. 557, 562,
112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). The burden falls on the
party advocating an adjustment to justify that a change is
necessary. United States Football League v. National Football
League, 887 F.2d 408, 413 (2d Cir. 1989) (citing Lindy Bros.
Builders Inc. v. American Radiator & Standard Sanitary Corp.,
540 F.2d 102, 118 (3d Cir. 1976)).
Defendants argue for a significant downward departure from the
lodestar because they believe this action was unnecessary.
Essentially, defendants contend that Seittelman v. Sabol,
91 N.Y.2d 618, 674 N.Y.S.2d 253, 697 N.E.2d 154, 1998 WL 151295
(1998), which held invalid the same Regulation at issue here,
rendered this action duplicative. I cannot agree.
Although Seittelman was pending before the New York Court of
Appeals at the same time this matter was being heard,
plaintiffs' victory was no less significant. The present case
addressed whether a state Medicaid regulation comports with
federal Medicaid laws. Thus, any decision by a federal court
would take precedence over a contrary state court decision.
Furthermore, had the New York Court of Appeals reversed the
lower courts and held the Regulation valid, this Court's
decision would have continued to bind the State from enforcing
the Regulation. It also bears emphasizing that plaintiffs in
this case were not members of the Seittelman class, and the
State was continuing to enforce the Regulation during the
pendency of the appeals. Further, had the plaintiffs not
initiated this action, their claims would also have been
time-barred. For all these reasons, defendants' assertion that
this action was duplicative of the Seittelman litigation is
Defendants next assert, in similar vein, that this litigation
can be classified as only "limited success" because plaintiffs
did not achieve monetary recovery, nor did they recover under
their alternative constitutional theories. Carroll v.
Blinken, 105 F.3d 79, 81 (2d. Cir. 1997). Yet the Second
Circuit has expressly rejected a requirement in civil rights
cases that an award of attorneys' fees be computed in strict
proportion to the degree of success a plaintiff achieved. See
Lunday v. City of Albany, 42 F.3d 131, 134-135 (2d Cir. 1994),
Cowan v. Prudential Ins. Co. of Am., 935 F.2d 522, 525-28 (2d
Cir. 1991). Consequently, instead of attempting to dissect the
case into discreet claims, I will, as the Supreme Court has
suggested, "focus on the significance of the overall relief
obtained by the plaintiff[s] in relation to the hours
reasonably expended on the litigation." Id. Here, the overall
relief obtained by plaintiffs was the invalidation of a
Regulation denying reimbursement during the retroactive period.
As a result of the relief obtained, plaintiffs have protected
not only their own rights but also the rights of thousands of
other individuals to seek reimbursement during the retroactive
period. This is significant. Defendants also concede "[i]n
fairness, the instant plaintiffs did achieve more than strictly
nominal relief." See Memorandum of Law in Opposition to
Plaintiffs' Motion for Attorneys' Fees, at 7. In short, the
degree of success factor does not warrant a reduction to the
I have considered defendants' remaining arguments and find them
to be without merit.
B. Costs and Expenses
The costs associated with litigation are generally recoverable
if they are "reasonable out-of-pocket expenses incurred by the
attorney and which are normally charged to fee-paying clients."
Reichman v. Bonsignore, Brignati & Mazzotta P.C.,
818 F.2d 278, 283 (2d Cir. 1987).
Here, plaintiffs seek to recover costs of $2,537.00,
representing expenses for postage, process servers, couriers
photocopies, long-distance telephone calls, research, and
facsimile transmissions. They are all properly recoverable.
See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.
1998); O'Grady, 1999 WL 30988, at *8. Defendants also oppose
none of them. Accordingly, plaintiffs are entitled to costs in
the amount of $2,537.00.
For the reasons stated above, plaintiffs' motion for attorneys'
fees and expenses is granted as follows: $68,580.00 and
$2,537.00 for the services and expenses of O'Connell and
Aronowitz; and $7,000.00 for the services of the Hogan firm.
IT IS SO ORDERED.
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