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Nager v. Teachers' Retirement System of the City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 23, 2008

ARNOLD H. NAGER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS-RESPONDENTS,
v.
TEACHERS' RETIREMENT SYSTEM OF THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS-APPELLANTS.

Order and judgment (one paper), Supreme Court, New York County (Paul G. Feinman, J.), entered September 17, 2007, in a action by a class of school teachers and administrators for a retroactive application of the decision in Weingarten v Board of Trustees of N.Y. City Teachers' Retirement Sys. (98 NY2d 575 [2002]) holding that "per session" pay is pensionable, insofar as appealed from, awarding plaintiffs' attorneys, the firms of Rosen Preminger & Bloom LLP and Sandals & Associates, P.C., fees of $332,681.50 and $113,030, respectively, unanimously modified, on the facts, to reduce the fee to the Rosen firm to $241,010, and the fee to the Sandals firm to $103,430, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Catterson, Moskowitz, DeGrasse, JJ.

119294/02

Supreme Court properly used the lodestar method in determining the reasonable value of plaintiffs' attorneys' services in instituting and settling this class action, rather than applying a percentage of the value of the settlement, in view of the enormous disparity in result between the two methods (see Goldberger v Integrated Resources, Inc., 209 F3d 43, 50 [2d Cir 2000]; In re Washington Public Power Supply Sys. Sec. Litig., 19 F3d 1291, 1927-1928 [9th Cir 1994]), and also correctly found that a multiplier was not warranted to enhance the lodestar amount (see Goldberger, id.; Sheridan v Police Pension Fund, Art. 2 of City of N.Y., 76 AD2d 800 [1980]). We find, however, that the Preminger firm failed to establish the reasonableness of its $610 per hour rate, the reasonableness of billing 76% of its hours at the top partner rate, and the qualifications of its associates (see Lochren v County of Suffolk, 2008 US Dist LEXIS 38100, *15 n 4, 2008 WL 2039458, *5 n 4 [ED NY 2008]). Accordingly, we modify to reduce the Preminger fee to $241,010. Similarly, we find that the Sandals firm failed to demonstrate its entitlement to payment at the top partner rate of all hours billed by Sandals for speaking to plan members, and accordingly reduce its fee to $103,400. We have considered the parties' remaining contentions for affirmative relief and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081223

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