Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Berkshire Bank v. Tedeschi

United States District Court, N.D. New York

January 16, 2015



LAWRENCE E. KAHN, District Judge.


This matter returns to the Court on a Motion for attorney's fees. Dkt. No. 48 ("Second Motion"). In a Memorandum-Decision and Order dated March 27, 2013, the Court granted Plaintiff Berkshire Bank ("Plaintiff") partial summary judgment on its claims for recovery on two of three promissory notes executed by Defendant Nancy K. Tedeschi ("Defendant"), and attorney's fees and costs related to the case. Dkt. No. 35 ("2013 Order"). In a Decision and Order dated March 31, 2014, the Court denied Plaintiff's first Motion for attorney's fees without prejudice. Dkt. Nos. 37 ("First Motion"); 47 ("2014 Order"). Presently before the Court is Plaintiff's Second Motion for attorney's fees, and an accompanying Memorandum of law. Second Mot.; Dkt. No. 50 ("Plaintiff's Memorandum"). For the reasons discussed below, the Court awards Plaintiff $34, 664.80 in attorney's fees and $3, 516.68 in costs.


Plaintiff sued Defendant for breach of two New York promissory notes and one Florida note. See 2013 Order. The Court granted Plaintiff partial summary judgment on the two New York notes. Id. at 26. Pursuant to the contracts executed between the parties, the Court found that the language of the agreements "explicitly required Defendant to reimburse Plaintiff for the attorney's fees and costs it incurred in enforcing them." Id. at 25 (citing Dkt. Nos. 16-5, ยง 7(E); 16-6 at 5). The Court deferred the determination of the amount of attorney's fees and costs pending a separate motion. Id. at 25-26. On April 9, 2013, Plaintiff filed a Motion for attorney's fees. First Mot. The Court denied Plaintiff's First Motion without prejudice, for failure to submit required supporting documentary evidence. See generally 2014 Order. Plaintiff then submitted the Second Motion, requesting $46, 448.50 in attorney's fees and $4, 137.27 in costs, and an accompanying Memorandum of law. Second Mot.; Pl.'s Mem. Defendant opposes the Second Motion, and incorporates by reference her objections to Plaintiff's First Motion. Dkt. Nos. 49; 42 ("Lenney Affidavit"); 43 ("Defendant's Memorandum").


Defendant argues that Plaintiff's request for attorney's fees is: (1) not supported by the required documentary evidence; (2) extreme, excessive, and unnecessary; and (3) unwarranted with respect to the Florida note. See generally Def.'s Mem; Lenny Aff.

A. Evidentiary Issues

Defendant argues that: (1) the affidavit submitted by David E. Valicenti ("Valicenti"), a partner at Cohen Kinne Valicenti & Cook LLP ("Cohen Kinne" or "the firm"), constitutes hearsay with respect to the experience and education of non-Valicenti attorneys; (2) Plaintiff did not submit bills from vendors or contemporaneous time records to support the Second Motion; and (3) Plaintiff's Services and Expense Statements are hearsay and have not been shown to be admissible under the business records exception. See generally Dkt. No. 49; Lenney Aff.; Def.'s Mem.

These evidentiary deficiencies-identified by Defendant in response to Plaintiff's First Motion-have been cured in the present Motion. To support the Second Motion, Plaintiff submits: (1) an affidavit from Ellen Armold ("Armold"), Cohen Kinne's chief accounting officer, Dkt. No. 48-1 ("Armold Affidavit"); (2) a copy of the contemporaneous time records kept by Cohen Kinne's attorneys, Dkt. No. 48-2 ("Exhibit 1"); (3) a record of the firm's costs for this case, Dkt. No. 48-3 ("Exhibit 2"); (4) Valicenti's Affidavit, Dkt. No. 48-4 ("Valicenti Affidavit"); (5) an Affidavit from Jesse Cook-Dubin ("Cook-Dubin"), an associate at Cohen Kinne, Dkt. No. 48-5 ("Cook-Dubin Affidavit"); and (6) an Affidavit from Ann Connell Smith ("Smith"), a paralegal at Cohen Kinne, Dkt. No. 48-6 ("Smith Affidavit").

The Valicenti Affidavit describes Valicenti's own education, experience, and hourly rates, as well as the experience levels of several associates and paralegals who worked on this case. See generally Valicenti Aff. Valicenti describes the experience levels of one associate, Chris Hennessey ("Hennessey"), and two paralegals, Angela Rocca-Killela ("Rocca-Killela") and Colleen McGrath ("McGrath"), based on his personal experience with their work at Cohen Kinne, and at Valicenti's prior firm. Id. at 3-4. The Cook-Dubin and Smith Affidavits also detail their respective education and experience levels. See generally Cook-Dubin Aff.; Smith Aff. These Affidavits are based on personal knowledge, and are sufficient to set forth the education and experience levels of Valicenti, Hennessey, Rocca-Killela, McGrath, Cook-Dubin, and Smith.[1]

Plaintiff has also submitted with the Second Motion contemporaneous time records kept by Cohen Kinne's attorneys, Ex. 1, and a record of the costs incurred in this case, Ex. 2. In addition to these records, Armold's Affidavit states that Armold is the firm's chief accounting officer, she is responsible for the firm's billing system, Exhibits 1 and 2 are copies of the firm's time and cost records, respectively, and both the time and cost records were kept as part of the firm's regularly conducted business. See generally Armold Aff. Armold's Affidavit is sufficient to lay a foundation for admitting Exhibits 1 and 2 under the business records exception to the hearsay rule. See FED. R. EVID. 803(6); Phoenix Assocs. III v. Stone, 60 F.3d 95, 101 (2d Cir. 1995) (finding that appellant's accountant and chief financial officer was "sufficiently familiar with the [company's] business practice'... and as his testimony indicated that the records were made as part of that practice, '... [he] was qualified to testify as custodian").

However, one individual whose initials appear in Plaintiffs time records, TAP, [2] is not identified in any of Plaintiff's filings. Though TAP appears in Plaintiff's time records with an hourly rate of $165 per hour, a rate at which Plaintiff claims to bill for associates, see Pl.'s Mem. at 3, TAP is not identified as an associate in the time records or otherwise, nor is TAP's education or experience described in any of Plaintiff's Affidavits or filings. Because Plaintiff has submitted no information to explain TAP's identity, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.