United States District Court, S.D. New York
December 7, 2005.
ACCESS 4 ALL, INC., a Florida not for profit corporation, and PETER SPALLUTO, Individually, Plaintiffs,
PARK LANE HOTEL, INC., a New York Corporation, Defendant.
The opinion of the court was delivered by: JAMES FRANCIS IV, Magistrate Judge
MEMORANDUM AND ORDER
The plaintiffs, Access 4 All, Inc. and Peter Spalluto, brought
this action claiming that the Helmsley Park Lane Hotel, owned by
defendant Park Lane Hotel, Inc. ("Park Lane"), contained
architectural barriers that prevented disabled persons from using
its full range of services, in violation of the Americans With
Disabilities Act, 42 U.S.C. § 12181 et seq. (the "ADA"). The
parties ultimately entered a settlement agreement addressing a
number of features of the property. The parties reserved for
decision by the Court the plaintiffs' application for an award of
attorneys' fees and costs and consented to refer this issue to me
for final disposition pursuant to 28 U.S.C. § 636(c).
The plaintiffs now move for an award of attorneys' fees of
$67,056.50 and expert witness fees and costs of $11,349.41, based
on the following hours and rates: Attorney Hours Rate Total
Fuller, Fuller & Assoc.
John P. Fuller 7.7 $425 $ 3,272.50
Lawrence A. Fuller 139.5 $425 $59,287.50
Tracie Dickerson 0.8 $240 $ 192.00
Paralegal 3.8 $115 $ 437.00
Mario B. Mikelinich 9.1 $425 $ 3,867.50*fn1
Expert Fees 46.0 $175 $ 8,050.00
Costs $ 3,299.95
(Plaintiffs' Verified Application for Attorneys' Fees, Expert's
Fees, Litigation Expenses and Costs and Incorporated Memorandum
of Law ("Pl. App.") at 12-13; Letter of Lawrence A. Fuller dated
Nov. 28, 2005 ("Fuller Letter") at 4-5).
The defendant opposes an award of this magnitude on the grounds
that (1) the plaintiff's counsel allegedly violated the
confidentiality provisions of the settlement agreement by
disclosing the terms of the agreement to a non-party; (2) the
time spent by plaintiffs' counsel on many tasks was excessive;
(3) the rates charged are not justified; (4) the expert witness
fees are excessive; (5) the plaintiffs' costs other than the
expert fees should be rejected; and (6) the plaintiff's
"lodestar" recovery should be reduced based on their limited
The ADA provides that a prevailing plaintiff may recover attorneys' fees, expert fees, litigation expenses, and costs.
42 U.S.C. § 12205. In a civil rights case such as this, the amount
of an award of attorneys' fees is determined using the "lodestar"
method: the number of hours reasonably expended multiplied by the
appropriate hourly rates for attorneys or paralegals. See
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "[T]he district
court should exclude excessive, redundant or otherwise
unnecessary hours, as well as hours dedicated to severable
unsuccessful claims." Quaratino v. Tiffany & Co., 166 F.3d 422,
425 (2d Cir. 1999) (citing Hensley, 461 U.S. at 433-35, 440).
Finally, while the lodestar can be adjusted in light of factors
such as the results obtained, Hensley, 461 U.S. at 434-35,
"[t]here is . . . a strong presumption that the lodestar figure
represents a reasonable fee." Quaratino, 166 F.3d at 425
(citation and internal quotation omitted). The parties'
contentions may now be considered within this framework.
A. Violation of the Confidentiality Provision
The settlement agreement contains a strict confidentiality
provision. Park Lane contends that plaintiffs' counsel violated
it by sharing the terms of the agreement with William Norkunas,
the defendant's former expert witness in this case, and should
therefore have their fees reduced or denied altogether. (Letter
of Sandor Frankel dated Nov. 18, 2005 ("Frankel Letter"). The
primary basis of this allegation is a memorandum that Mr.
Norkunas sent to a representative of Park Lane stating in part:
Your attorneys did not serve you well in this case.
The settlement you are asked to sign is horrible.
There must always be language in any such settlements that the
plaintiffs and their attorneys cannot sue you in the
future. You don't have that!
(Memorandum from Bill Norkunas to Abe Wolf dated June 8, 2005,
attached as Exh. 1 to Frankel Letter). In addition, Park Lane
notes that Mr. Norkunas knew that he was replaced as the
defendant's expert by Elliot Vilkas even though no one from Park
Lane provided that information, and it argues that this shows
that Mr. Norkunas must have learned this from plaintiffs' counsel
as well. (Frankel letter at 1-2 & Exh. 2).
In light of the questions raised by Park Lane, I permitted the
defendant to depose Mr. Norkunas. However, I declined to permit a
deposition of plaintiffs' counsel. (Order dated July 11, 2005,
attached as Exh. 3 to Frankel Letter). Mr. Norkunas testified
that neither the plaintiffs nor plaintiffs' counsel had shown him
a copy of the settlement agreement in this case nor discussed it
with him. Rather, because he had worked with plaintiffs' counsel
in numerous cases and was familiar with the terms that they
always insisted upon, he simply assumed that the settlement in
this case followed the same pattern. (Deposition of William
Norkunas ("Norkunas Dep."), attached as Exh. 4 to Frankel Letter,
at 52-54, 62-64, 66, 80-81). Likewise, Mr. Norkunas testified
that neither the plaintiffs nor plaintiffs' counsel told him that
Elliot Vilkas had replaced him as defendant's expert. Rather, Mr.
Norkunas inferred that Park Lane had hired Mr. Vilkas when a
representative told him that it had engaged the top accessibility
architect in New York. (Norkunas Dep. at 30-34, 47, 78). Park Lane contends that I should discount Mr. Norkunas'
testimony as inherently incredible or, at least, permit the
deposition of plaintiffs' counsel. I decline the invitation. Mr.
Norkunas' explanations for assuming the content of the settlement
agreement and for inferring the identity of the defendant's
expert are plausible, even though his conduct toward Park Lane
after his discharge was plainly inappropriate. Furthermore,
plaintiffs' attorney has submitted an affidavit declaring
unequivocally that he neither showed the settlement agreement to
Mr. Norkunas nor discussed it with him. (Affidavit of Lawrence A.
Fuller dated Nov. 25, 2005, attached as Exh. 1 to Fuller Letter).
This issue has been fully explored, and Park Lane has not
demonstrated a basis for denying or reducing the plaintiffs' fee
award on the basis of a breach of confidentiality.
B. Excessive Hours
Park Lane maintains that plaintiffs' counsel spent excessive
time on various tasks in this case. To determine the number of
hours that are compensable, a court must initially look to the
amount of time spent on each category of task, as documented by
contemporaneous time records of the moving party's attorney.
Kuper v. Empire Blue Cross and Blue Shield, No. 99 Civ. 1190,
2003 WL 23350111, at *11 (S.D.N.Y. Dec. 18, 2003). In calculating
the number of "reasonable hours," the court may rely on its own
familiarity with the case and the evidentiary submissions and
arguments of the parties. Clarke v. Frank, 960 F.2d 1146, 1153
(2d Cir. 1992). And, "[i]f the court concludes that portions of
the expended time were not reasonably necessary to achieve the
successful result obtained by the movant, it should reduce the
time for which compensation is awarded." Kuper, 2003 WL
23350111, at *11.
Park Lane argues first that the compensation for plaintiffs'
counsel should be reduced because they refused to explore
settlement prior to formal litigation. Indeed, the Honorable
Shira A. Scheindlin, U.S.D.J., briefly stayed the lawsuit to give
counsel an opportunity to conduct an inspection of the premises
and attempt to reach a resolution. However, that process was
stymied when Park Lane initially failed to respond to the
suggestions of plaintiffs' counsel with respect to dates for the
inspection. (Plaintiffs' Reply to Defendant's Memorandum of Law
in Opposition to Plaintiffs' Application for an Award of
Attorney's Fees, Expert's Fees, Litigation Expenses and Costs
("Pl. Reply"), Exhs. 1, 2). Moreover, a party simply has no
obligation to resolve a dispute outside the context of a lawsuit.
Next, Park Lane contends that an inordinate amount of time was
spent preparing the Complaint and Amended Complaint in light of
the fact that the plaintiffs' pleadings closely tracked their
complaints in other ADA actions. However, the 4.4 hours spent on
the original Complaint and the 3.8 hours devoted to amending it
were modest expenditures of time and warranted by the resulting
Park Lane further argues that an excessive amount of time was
spent on researching the issue of the permissible scope of the releases to be provided by the plaintiffs. That research was
necessitated, however, by the defendant's insistence that any
settlement include terms that would have precluded the
plaintiffs' counsel from ever representing any plaintiff in
litigation involving property owned by Helmsley Enterprises,
Inc., the indirect owner of the Park Lane Hotel. Plaintiffs'
counsel demonstrated that such a provision would have violated
Rule 5.6 of ABA Model Rules of Professional Conduct as well as
New York Disciplinary Rule 2-108. Park Lane can hardly complain
about work that was the result of its own improper settlement
The defendant also maintains that plaintiffs' counsel spent an
inordinate amount of time reviewing documents that it produced on
May 25, 2005, the date upon which, according to Park Lane, all
essential elements of a settlement had been agreed to. However,
at that time, Park Lane had not yet withdrawn its demand that
plaintiffs' counsel agree not to represent anyone suing Helmsley
properties in the future. Consequently, there was no assurance
that a settlement would be executed, and counsel were facing a
June discovery deadline imposed by Judge Scheindlin. Indeed, the
fact that defendant's counsel produced documents at that time
demonstrates their own understanding that discovery was ongoing.
Finally, Park Lane argues that fees sought by counsel who have
not been adequately identified should be rejected. With respect
to John Fuller and Mario Mikelinich, this contention is puzzling,
since both of them, along with Lawrence Fuller, provided their
curricula vitae as part of the initial fee application. (Pl.
App., Exh. 2). It is true that no résumé was submitted for the
unnamed paralegal. However, given the type of work to which
paralegals are limited, their credentials would have no impact on
the compensability of their time. The situation is different with
respect to Tracie Dickerson, an attorney first identified in the
plaintiffs' reply papers. Because her qualifications have not
been disclosed, her billing rate cannot be evaluated at all, and
I therefore reject the application for fees related to her work.
The plaintiffs seek compensation for Lawrence Fuller, John
Fuller, and Mr. Mikelinich at the rate of $425 per hour, which
the defendant claims is excessive. In determining a reasonable
rate, the Court should rely on rates "prevailing in the community
for similar services by lawyers of reasonably comparable skill,
experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896
n. 11 (1984); see also Gierlinger v. Gleason, 160 F.3d 858,
882 (2d Cir. 1998)); S.W. ex rel. N.W. v. Board of Education of
City of New York (District Two), 257 F. Supp. 2d 600, 604
(S.D.N.Y. 2003). The relevant community is the district in which
the case was brought, In re Agent Orange Product Liability
Litigation, 818 F.2d 226, 232 (2d Cir. 1987), which in this case
is the Southern District of New York.
Within the last five years, courts have approved rates ranging
from $250 to $425 per hour for work done by partners in small
firms in this district. See Kuper v. Empire Blue Cross and
Blue Shield, No. 99 Civ. 1190, 2003 WL 23350111, at *9-10
(S.D.N.Y. Dec. 18, 2003) (lead attorney of small firm in civil rights case is
awarded $425 an hour); New York State NOW v. Pataki, No. 93
Civ. 7146, 2003 WL 2006608, at *2 (S.D.N.Y., April 30, 2003)
(approving $430 an hour for small firm civil rights litigator
with thirty-four years experience); Gonzalez v. Bratton,
147 F. Supp. 2d 180, 211-12 (S.D.N.Y. 2001) (rates up to $390 an hour
for senior attorneys are "within the range of reason" for "civil
rights cases in this district" but at the "high end of the scale
for a small law firm"); Pascuiti v. New York Yankees,
108 F. Supp. 2d 258, 266 (S.D.N.Y. 2000) ($250 for attorneys at small
firm with twenty-nine and twenty-eight years of experience is
reasonable); Marisol A. ex rel. Forbes v. Giuliani,
111 F. Supp. 2d 381, 386-88 (S.D.N.Y. 2000) ($350 for attorneys with
more than fifteen years of experience is a reasonable rate scale
for civil rights cases in the Southern District of New York).
Currently, hourly rates in excess of $400 can be applied to small
firms. In a similar ADA lawsuit in 2004, Lawrence Fuller was
awarded $325 per hour for work done in the Eastern District of
Michigan. Betancourt v. 3600 Centerpoint Parkway Investments,
LLC, No. 03-72868 (E.D. Mich. 2004).
Lawrence Fuller, John Fuller, and Mario Mikelinich each have 20
years of legal experience or more. (Pl. App., Exh. 2). Given
their qualifications, the quality of the work performed in this
case, and the range of hourly rates approved in similar cases in
this district, the appropriate rate with which to calculate an
award is $350 per hour.
With respect to the work performed by a paralegal, the requested rate of $115 per hour is reasonable. See Morris v.
Eversley, 343 F. Supp. 2d 234, 248 (S.D.N.Y. 2004) (allowing
paralegal rate of $125/hour in civil rights case).
C. Expert Fees
The plaintiffs have applied for an award of expert fees for
their expert witness, Herbert Neff, for 46 hours of work at a
billing rate of $175 per hour, for a total of $8,050. (Pl. App.,
Exh. 8). It is within the Court's discretion to award a
prevailing party under the ADA its litigation expenses, including
expert witness fees. 42 U.S.C. §§ 12117(a), 12205.
Mr. Neff's charges are excessive in a number of respects.
First, he submitted an invoice in August 2004 that included
claims for time spent conducting an on-site inspection (Pl. App.,
Exh. 8), despite the fact that during a joint inspection with all
counsel in January 2005, Mr. Neff stated that he had not visited
the hotel in years. (Declaration of M. Breeze McMennamin dated
July 19, 2005 ("McMennamin Decl."), ¶¶ 10-12). Second, Mr. Neff
billed for travel related to the January inspection and for a
mediation in March, even though he was previously scheduled to be
in New York on those dates in connection with other matters.
(McMennamin Decl., ¶¶ 10, 16). Third, he billed for attendance of
his assistant, Pablo Baez, at a settlement conference in May
2005. However, Mr. Baez appeared as a representative of the
plaintiffs with settlement authority, and his time is not
compensable as an expert. Mr. Neff did prepare an expert report
for which he may be compensated. Unfortunately, he has not
provided a detailed breakdown for how his time was allocated among various tasks, and any ambiguity in his
time records must be construed against him. At the most, Mr. Neff
is entitled to be compensated for 25 hours of work at $175 per
hour, for a total of $4,375.
Lastly, Park Lane has cited a court decision indicating that
Mr. Neff is in a witness protection program, and argues that his
application for fees should be rejected because his background
and credentials cannot be verified. However, defendant's counsel
have proffered no evidence that they, in fact, attempted to check
Mr. Neff's qualifications but were unable to do so. Indeed, they
never attempted to depose him in order to ascertain the
authenticity of his rèsumè. It would not be appropriate to
reject his claim for fees on the basis of mere speculation.
The plaintiffs have applied for an award of $3,299.95 for costs
other than expert fees. Most of the items, such as photocopying
and postage, are based on detailed records and are plainly
compensable. See Duke v. County of Nassau, No. 97-CV-1495,
2003 WL 23315463, at *6 (E.D.N.Y. April 14, 2003). Two entries,
however, raise some concern. On January 5, 2005, plaintiffs'
counsel charged $850 to travel and accommodations in connection
with an inspection of the hotel premises. However, as noted
above, that trip was scheduled to coincide with counsel's
presence in New York on another case. Therefore, reimbursement
for those costs in this case will be reduced by half. Second,
counsel billed $750 on January 25, 2005, for "Re-inspection
Fee(s) to disability group." (Pl. App., Exh. 5 at 9). This expense is purportedly for "the
reinspection contemplated after the Defendant completes the
repairs of the existing barriers to access, to confirm that ADA
violations have been corrected." (Pl. App. at 11-12). But there
is no basis for assessing against the defendant the costs of
monitoring compliance where the monitoring entity has not been
identified and the work has not been performed. No compensation
is warranted for this item. Therefore, the total costs awarded
shall be $2,124.95.
F. Degree of Success
Finally, Park Lane argues that the plaintiffs obtained only a
fraction of the relief they sought and that the lodestar recovery
should be reduced in proportion to their limited success. An
award may not be reduced merely because the fee would be
disproportionate to the financial interest at stake in the
litigation. See Kassim v. City of Schenectady, 415 F.3d 246,
252 (2d Cir. 2005); Quaratino, 166 F.3d at 425-26.
Nevertheless, in the Second Circuit, fees may be reduced based on
the limited success of the plaintiff, even if the case was
litigated on the basis of a single, unitary theory, and even if
the plaintiff recovered more than nominal relief. Kassim,
415 F.3d at 253-55.
Here, however, no such reduction is warranted. Without
breaching confidentiality, it is sufficient to observe that the
settlement agreement, which the Court retains jurisdiction to
enforce, requires the defendant to spend a substantial amount of
money to improve accessibility for disabled persons to a number
of the Park Lane Hotel's facilities and services. It is true, as
the defendant argues, that the relief obtained falls short of what
was demanded in the complaint. But, by the same token, it far
exceeds what Park Lane contended was the limit of its legal
obligations. Moreover, the remedies obtained will inure not only
to the benefit of the parties, but also to other disabled persons
using the hotels facilities in the future. See Morris,
343 F. Supp. 2d at 248. Measuring the plaintiffs' accomplishment by the
magnitude of the relief rather than by the expectations of the
parties, they have achieved a sufficient level of success to
justify compensation at the full amount of the lodestar.
For the reasons set forth above, the plaintiff's application
for an award of attorneys' fees and costs is granted to the
Attorney Hours Rate Total
Fuller, Fuller & Assoc.
John P. Fuller 7.7 $ 350 $ 2,695.00
Lawrence A. Fuller 139.5 $ 350 $48,825.00
Paralegal 3.8 $ 115 $ 437.00
Mario Mikelinich 9.1 $ 350 $ 3,185.00
Expert fees $ 4,375.00
Other $ 2,124.95
The Clerk of Court shall therefore enter judgment in favor of
the plaintiffs and against the defendant in the amount of $61,641.95.
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