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K.L. v. Warwick Valley Central School District

United States District Court, Second Circuit

September 5, 2013

K.L., individually and as parent and next friend of M.L., a child with a disability, Plaintiff,

Andrew K. Cuddy, Esq., Jason H. Sternem, Cuddy Law Firm, P.C. Auburn, NY, for plaintiff.

Karen S. Norlander, Girvin & Ferlazzo, P.C., Albany, NY, for defendant.


DENISE COTE, District Judge.

Plaintiff brings this action pursuant to the fee-shifting provisions of the Individuals with Disabilities Education Act, 20 U.S.C. ยงยง 1400 et seq. ("IDEA"), and moves for summary judgment seeking attorneys' fees in the amount of $27, 614.00. Defendant Warwick Valley Central School District (the "District")[1] opposes the fee application on the grounds that (i) plaintiff is not a "prevailing party" under the IDEA, and (ii) the hourly rate sought and number of hours expended by plaintiff's attorneys are unreasonable. For the following reasons, plaintiff's motion for fees is granted in part. Plaintiff is awarded attorneys' fees and costs in the amount of $3, 394.00.


Plaintiff K.L. (the "Parent") is the parent of M.L. (the "Student"), a child with a disability. The District provided M.L. with an individualized education program ("IEP") for the 2011-2012 school year, which included extended school year services ("ESY") at Bishop Dunn Memorial School ("Bishop") during the summer of 2011. The Parent had unilaterally enrolled the Student at the St. Stephen's School for the 2011-2012 school year.

On March 27, 2012, the District convened a local Committee on Special Education ("CSE") to develop an IEP for the Student for the 2012-2013 school year ("2012-2013 IEP"). The Parent attended and participated in the CSE. The District's 2012-2013 IEP recommended that M.L. be placed at the Warwick Valley Middle School for the 2012-2013 school year, and that the Student receive "Resource Room" services daily, speech and language classes two periods per week, and counseling one period per week throughout the 2012-2013 school year. The 2012-2013 IEP discontinued both ESY services for the summer of 2012 and occupational therapy services throughout the school year. The CSE indicated that it did not recommend ESY services because it had "concluded... that the [S]tudent would not substantially regress over the summer."

The Parent objected to various aspects of the proposed 2012-2013 IEP, particularly the Student's exclusion from ESY for the summer of 2012. Although the Parent requested a written copy of the IEP on two occasions - first at the end of the CSE meeting, and then in writing in early May 2012 - the plaintiff had not received a written copy of the 2012-2013 IEP as of the beginning of June 2012. 2012 ESY services were scheduled to begin in late June 2012.

The plaintiff contacted the Cuddy Law Firm (the "Firm") seeking assistance in obtaining a more suitable school placement for the Student for the 2012-2013 school year. The Firm specializes in providing "special education and special needs planning" legal services. It has ten attorneys working out of two offices: its main offices in Auburn, New York, and a second office in White Plains, New York.

After consultation, the plaintiff signed a retainer agreement with the Firm on May 31, 2012 ("Retainer"). The Retainer relied on the fee-shifting provision of the IDEA. The Retainer provided that the Parent would pay (i) $2, 000 as an initial retainer, (ii) $1, 000 five business days before each scheduled hearing date, and (iii) all costs and expenses;[2] and that the Firm would bill the Parent "$475 per hour for attorney time, and $125 per hour for paralegal time." The Retainer also required the Parent to include an express provision in any settlement agreement that attorneys' fees would be paid by the District, and to cooperate fully in any efforts to recover attorneys' fees and costs from the District.

The Firm initiated administrative proceedings against the District by letter dated June 15, 2012, requesting an impartial due process hearing (the "Hearing Request"). The Hearing Request alleged that the District had violated the IDEA by denying M.L. a free appropriate public education ("FAPE") for the 2012-2013 school year on various procedural and substantive grounds, including inter alia that the District improperly discontinued the Student's ESY for the summer of 2012 over the Parent's objection; failed to provide the Parent with timely notice of the District's proposed IEP prior to the start of ESY, denying the Student a FAPE;[3] failed to evaluate the Student properly; failed to include appropriate goals in the 2012-2013 IEP; and failed to provide an appropriate placement to accommodate the Student's needs. According to the Firm, however, "[t]he major purpose of the [H]earing [R]equest was to obtain summer 2012 [ESY] services for the Student."

For relief, the plaintiff sought either placement at or prospective payment for M.L. to attend Bishop for ESY during the summer of 2012 and the following 2012-2013 school year, or, in the alternative, M.L.'s placement in appropriate programs for those periods with all related costs paid by the District. The Plaintiff also requested: (i) transportation and all costs related to the Student's attendance at Bishop, (ii) assurance that the school district in which Bishop was located would develop and implement an Individual Educational Service Plan ("IESP") for the Student during the 2012-2013 school year, which would provide any additional special education services that the Student required, (iii) the provision of "any services that were not appropriately provided pursuant to the pendency provision of the IDEA" during the course of the administrative proceedings, and (iv) orders to conduct both a functional behavior assessment and an auditory process evaluation of the Student. The Hearing Request was four pages in length.

The District received a copy of the Hearing Request on June 15. The District promptly acknowledged its obligation under the IDEA's "stay-put" provision to maintain ESY for M.L. at Bishop during the pendency of the administrative proceedings.[4]

Shortly after submitting the Hearing Request, the plaintiff was informed that Bishop would not admit any new students into its special education program for fall 2012. As a result, the Parent sought alternative placement for M.L. for the 2012-2013 school year at Sacred Heart Parish School ("Sacred Heart"), located in the Monroe-Woodbury School District ("Monroe-Woodbury"). Whereas Bishop is located approximately thirty-seven miles from M.L.'s home, Sacred Heart is a non-public school located within fifteen miles of M.L.'s home.

On June 19, the Firm communicated plaintiff's proposed settlement terms to the District ("June 19 Proposal"). This was the second document produced by the Firm, and appears to have been a short message from attorney Andrew Cuddy ("A. Cuddy") that was no longer than one page in length. The June 19 Proposal stated:

The parent receive [sic] the resolution session notice today, and it is scheduled for Tuesday.
We are primarily concerned about pendency, [5] and would like that resolved.
For settlement, I think the structure is simple;
1) ESY at Bishop [ ]
2) Regular school year at Sacred Heart, tuition is $3Kish
3) Transport, this was an issue if Bishop [] was the regular school year site, not an issue with Sacred Heart as it is within the transport radius.[6]
4) IESP by Monroe-Woodbury.
5) Fees and costs, rather minor at this point and under $5K, and I think this could be wrapped up tomorrow. Would you like me to draft something and make a proposal. Yes, [Michael J. Cuddy] will likely be handling this. I was just following up based on a client call tonight, and having time on my hands stuck in a hotel.

On June 21, the Firm sent a written settlement agreement to the attorney for the District reflecting the terms outlined in the June 19 Proposal.[7] The parties participated in an IDEA-mandated resolution meeting on July 12 ("Resolution Session"), which lasted thirty minutes. The plaintiff; Dr. Raymond Bryant, Superintendant of Schools for the District; and Chris Fox, the District's Director of Pupil Personnel, attended the Resolution Session in person. A paralegal from the Firm, Diane Aughtmon ("Aughtmon"), participated in the Resolution Session by telephone.

At the Resolution Session, the District presented its own written settlement proposal to the plaintiff ("District Proposal"). The terms of the District Proposal would be adopted in substance in the final ...

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