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LLC v. Skyline Woods Realty, LLC

United States District Court, Second Circuit

June 7, 2013

RCB EQUITIES #3, LLC, Plaintiff,

SCHILLER, KNAPP LAW FIRM, William B. Schiller, Esq., Latham, New York, Attorneys for Plaintiff.

ZISHOLTZ & ZISHOLTZ, LLP, Stuart S. Zisholtz, Esq., Mineola, New York, Attorneys for Defendants, Skyline Woods Realty, LLC and Howard Martin.


MAE A. D'AGOSTINO, District Judge.


Presently before the Court is a motion submitted by RCB Equities #3, LLC ("RCB" or "plaintiff") for an Order awarding attorneys' fees in the amount of $31, 103.61 and costs and disbursements in the amount of $2, 340.63. (Dkt. No. 59). Defendants Howard Martin and Skyline oppose plaintiff's motion and argues that an evidentiary hearing is necessary in the absence of a retainer agreement. (Dkt. No. 60).


Familiarity with the facts and procedural history is assumed based upon this Court's prior Memorandum-Decisions and Orders. On March 11, 2013, this Court issued an Order and denied defendant's motion for summary judgment and adopted the referee's report. The Court denied plaintiff's motion for attorneys' fees and costs with leave to renew within thirty days of the Order finding:

Here, the record lacks sufficient information to allow this Court to award a reasonable amount for attorneys' fees and costs. Plaintiff has not provided copies of contemporaneous time records or invoices demonstrating attorneys' fees and costs incurred as a result of the within action. Plaintiff's submission includes an Declaration of William B. Schiller wherein counsel avers that, "[a]s of the date of this declaration, fees for legal services rendered in this matter total $23, 096.79" and information regarding "prospective legal services". However, the declaration does not include information regarding counsel's background and experience and the customary fees and/or hourly rate charged for similar legal services. See E. Savings Bank, FSB v. Rabito, 2012 WL 3544755, at *7 (E.D.N.Y. 2012) (in addition to a judgment of foreclosure and sale, plaintiff sought attorneys' fees but failed to submit contemporaneous time records and documents regarding costs incurred during the course of litigation); see also Imaging Fin. Serv., Inc. v. Digital Page, LLC, 2012 WL 913257, at *3 (N.D.N.Y. 2012) (the plaintiff failed to submit documentation of either the attorneys' hourly rate or the number of hours spent on this matter, and therefore cannot determine whether the requested fees and costs are reasonable). Accordingly, plaintiff's motion is denied. However, the Court will allow plaintiff to supplement the request for fees with the aforementioned information. See Lumbermens Mut. Cas. Ins. Co. v. Darel Group U.S.A., Inc., 253 F.Supp.2d 578, 587 (S.D.N.Y.2003).

Plaintiff has timely renewed the motion and has annexed an attorney affidavit detailing counsels' experience and contemporaneous time records.


In determining reasonable attorney's fees, the district court must calculate a "lodestar" figure based upon the number of hours reasonably expended by counsel on the litigation multiplied by a reasonable hourly rate. Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.1997) (citations omitted). The Court has "discretion in determining the amount of a fee award, " and must use that discretion to make "its own assessment of what is appropriate[.]" Luca v. County of Nassau, 698 F.Supp.2d 296, 306 (E.D.N.Y.2010) (internal citations omitted) (citing N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983)).

I. Hourly Rate

With respect to hourly fees, the Second Circuit has held that courts are to award the presumptively reasonable fee, that is, the fee that would be paid by a reasonable, paying client in the relevant community. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 191-93 (2d Cir.2008). The prevailing community is the district in which the court sits. Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.1997). In determining what is reasonable, the following factors are useful:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ...

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