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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


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 __________ Total: $78,405.95
  (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 success.

  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 product.

  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 demands.

  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.

  C. Rates

  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.

  E. Costs

  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 following extent: 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 __________ Total: $61,641.95
  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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