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Hines v. 1025 Fifth Avenue Inc.

United States District Court, S.D. New York

June 30, 2015

1025 FIFTH AVENUE INC., Defendant.

Counsel for Plaintiffs James E. Bahamonde, Esq. The Law Offices of James E. Bahamonde, P.C. North Bellmore, NY

Counsel for Defendant: Steven Barshov, Esq. Sive, Paget & Reisel, P.C. New York, NY


SHIRA A. SCHEINDLIN, District Judge.


In May 2014, George, Helene, and Jennifer Hines (the "Hineses") brought this action against 1025 Fifth Avenue Inc. (the "Co-op") asserting discrimination claims under the Fair Housing Act ("FHA"), the New York State Human Rights Law, the New York City Human Rights Law!("NYCHRL"), and the New York City Administrative Code (the "Discrimination Lt;lws"). They sought both injunctive relief and damages, and demanded a trial by jury. In February 2015, I granted the Co-op's motion to strike the Hineses' jufy demand (the "Motion to Strike"). On April 17, 2015, the parties entered into a stipulation of settlement (the "Settlement"). Plaintiffs now move for attorney's fees and costs under the FHA and NYCHRL. Specifically, plaintiffs seekifees of $288, 541.35 and costs in the amount of $6, 702.69 for the work of their attorney, James E. Bahamonde, a North Bellmore, solo-practitioner. For the following reasons, plaintiffs are awarded fees of $118, 037.50 and costs of $6, 702.69.


A. The Underlying Litigation

In 2001, Helene and George Hines purchased and moved into a onebedroom co-op apartment owned by 1025 Fifth Avenue, Inc. (the "Co-op").[2] George and Helene identified themselves as co-applicants and both were interviewed by the Co-op's Board of Directors.[3] As part of their application, they listed the names and ages of their children, Brian Hines and Jennifer Hines.[4] Additionally, both George and Helene signed an acknowledgment that they had read the House Rules of the Co-op and that they understood the pet policy.[5] After the Board's approval, Helene and the Co-op executed a Proprietary Lease (the "Lease"), dated August 14, 2001 and extending through September 30, 2050.[6]

The Lease identifies Helene Hines as the Lessee.[7] Among other things, it includes a covenant related to the use of the premises, and provides: "The Lessee shall not occupy or use the apartment, or permit the same or any part thereof to be occupied or used, for any purpose other than as a private dwelling apartment for the Lessee[] [and] the family and servants of the Lessee...."[8] The Lease does not permit subletting without the Co-op's written consent.[9] The Lease also provides a procedure for the assignment of the Lease, which includes a requirement of written consent from either the Board of Directors or lessees owning a majority of the capital stock in the Co-op.[10] The Lease specifies that "the covenants herein contained shall apply to, bind and enure to the benefit of the Lessor and its successors and assigns, and the Lessee and the executors and administrators, legal representatives, legatees and assigns of the Lessee, except as hereinbefore stated."[11] Finally, the Lease provides for a waiver of trial by jury:

It is mutually agreed by and between the Lessor and the Lessee that the respective parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaims brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this lease, the Lessee's use or occupancy of the apartment, or any claim of damage resulting from any act or omission of the parties in any way connected with this lease or the apartment.[12]

The jury waiver appears on the last page of the Lease, which is also the signature page containing the signatures of the Co-op's representatives, Helene Hines, and Kathy Reitman, the Hines's attorney, as a witness.[13]

In or around 2010, Jennifer Hines moved into the apartment with her parents due to health concerns.[14] George and Helene renovated the apartment to create a second bedroom for Jennifer.[15] Both Helene and Jennifer keep service dogs, and Jennifer keeps an emotional support dog as well.[16] These dogs assist Helene and Jennifer with the management of their diseases. Starting in or around 2013, the presence of the dogs, as well as the placement of Helene's car, became a source of conflict between the Hineses and the Co-op.[17]

On May 21, 2014, the Hineses commenced this action against the Coop, alleging that the Co-op discriminated against the Hineses on the basis of their disabilities, and refused to make reasonable accommodations. The Hineses sought the following relief:

1. A declaratory judgment that defendant's conduct violated the Discrimination Laws;
2. An injunction preventing defendant from discriminating on the basis of disability against any persons in violation of the Discrimination Laws, including by (a) making notices or statements, with respect to the lease of a dwelling that indicate a preference, limitation, or discrimination based on disability, (b) denying a dwelling because of disability, (c) providing inferior terms, conditions, or privileges because of disability, (d) aiding, abetting, coercing, intimidating and discriminating based on disability, (e) refusing to make reasonable accommodations, (f) restricting assistance animals from using the passenger elevator, and (g) conditioning a reasonable accommodation upon a disabled person agreeing to be provided inferior services, privileges, and use of the facilities;
3. An injunction further requiring defendant to (a) modify its Pet Permission Form so that it does not have a disparate impact, (b) make all necessary modifications to its policies, practices, and procedures to comply with the Discrimination Laws, (c) train all management, agents, and employees on fair housing laws, (d) and reactivate the Lease between plaintiffs and defendant;
4. Compensatory damages; and
5. Punitive damages.[18]

On August 5, 2014, defendant filed an Answer to the FAC, which asserted a counterclaim for breach of the Lease. The parties then engaged in discovery, which included document requests, sixteen depositions, and a motion to compel.[19] On February 23, 2015, I granted the Motion to Strike the Jury Demand. On April 15, 2015, the parties entered into a Stipulation and Settlement, resolving all but one of the disputes between the parties (the "Settlement"). That dispute was later resolved with the Court's assistance at a conference held on May 27, 2015.

Under the terms of the Settlement, defendant agreed to pay plaintiffs reasonable attorney's fees and costs in an amount to be determined by the Court, as well as $50, 000 in damages.[20] Defendant also agreed to withdraw all notices to quit and terminate, allow plaintiffs to remain in their apartment with their assistance dogs, and amend its common area and pet policies to permit plaintiffs to be accompanied by their assistance dogs on the passenger elevators. In addition, defendant agreed to provide notice to all Co-op shareholders that Helene and Jennifer Hines are entitled by law to take their assistance dogs on the passenger elevator, and that Helene Hines is permitted to park her vehicle in the "No Parking" zone abutting the building's entryway because of her specialized handicap parking permit. Finally, defendant agreed to keep confidential the medical information disclosed by plaintiffs during this litigation.[21]

B. The Instant Motion for Attorney's Fees and Costs Plaintiffs seek fees of $288, 541.35 based on 723.5 hours of

Bahomonde's time. Bahamonde charged plaintiffs an hourly rate of $415, except for his travel fees which he billed at $207.50. In addition, plaintiffs seek an award of costs and expenses of $6, 702.69.


District courts are afforded considerable discretion in determining the amount of reasonable attorney's fees in any given case.[22] In addition, "the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates."[23]

A. Lodestar

The prime methodology to be used in determining the amount of attorney's fees is the "lodestar" approach. The Supreme Court has endorsed the "lodestar" approach as the superior method to be used in determining attorney's fees, describing it as "the guiding light of... fee-shifting jurisprudence.'"[24] Moreover, there is a "strong" presumption that "the lodestar method yields a fee that is presumptively sufficient to achieve this objective."[25]

The lodestar is the product of the attorney's reasonable hourly rates multiplied by the reasonable number of hours worked by the attorneys.[26] "The reasonable hourly rate is the rate a paying client would be willing to pay."[27] In determining the reasonable hourly rates to be applied, courts should look to the market rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'"[28] In sum, in determining a reasonable hourly rate, courts "should bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively."[29]

In determining the appropriate hourly rate, courts "may adjust the base hourly rate to account for other case-specific variables."[30] These variables include twelve factors set forth in Johnson v. Georgia Highway Express, Inc.: [31] (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee;

(6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved or the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.[32] The court need not "recite and make separate findings as to all twelve Johnson factors."[33]

B. Proportionality

There is no rule requiring proportionality between the amount of fees requested and the damages recovered. The Second Circuit has stated:

While a court may, in exceptional circumstances, adjust the lodestar, it may not disregard it entirely. Especially for claims where the financial recovery is likely to be small, calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery. Thus, the district court abused its discretion when it ignored the lodestar and calculated the attorneys' fees as a proportion of the damages awarded.[34]

"Reasoning that a rule calling for proportionality between the fee and the monetary amount involved in the litigation would effectively prevent plaintiffs from obtaining counsel in cases where deprivation of a constitutional right caused injury of low monetary value, [courts] have repeatedly rejected the notion that a fee may be reduced merely because the fee would be disproportionate to the financial interest at stake in the litigation."[35]

C. Degree of Success

It is often said that "the most critical factor' in a district court's determination of what constitutes reasonable attorney's fees in a given case is the degree of success obtained' by the plaintiff."[36] "Hours spent on unsuccessful fee-shifting claims, like those spent on claims wholly ineligible for fee-shifting, must be excluded from the reasonable hours spent on the case when calculating the lodestar."[37] As recognized by the Supreme Court, where

a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.[38]


A. Attorney's Fees

In a case that lasted less than a year, involved a single, non-dispositive motion, and settled before trial, plaintiffs seek to recover $288, 541.35 in attorney's fees based on 723.5 hours billed by a single attorney. While plaintiffs are entitled to reasonable attorney's fees, the amount demanded far exceeds the outer bounds of what is reasonable and therefore requires a significant reduction.

1. Reasonable Rate

Plaintiffs seek a fee award based on an hourly rate of $415. Defendant argues that this is an unreasonable rate for Bahamonde, a solo practitioner with twelve years of legal experience in the fields of housing and disability discrimination.[39] Defendant contends that Bahamonde's customary rate is closer to $345, because Bahamonde sought that amount in a September 2014 case under the Americans with Disability Act.[40] According to Defendant, $360 is a reasonable fee in this case. Plaintiffs respond that Bahamonde charges a lower hourly rate for cases under the ADA than under the FHA because lawsuits alleging housing discrimination are far more difficult than ADA cases.

A rate between $325 and $360 is far more consistent with Bahamonde's thirteen years of experience[41] and his ability than the $415 he seeks in this case. First, while Bahamonde claims that he "regularly charges clients on the hourly-fee basis of $415 an hour" and his "present customary hourly rate for representations of housing discriminations cases [ sic ] filed under the Fair Housing Act, litigated in the Southern District of New York, is $415 per hour, " he has not offered any proof beyond his self-serving declaration - such as retainer agreements or court papers approving that fee - to support that assertion.[42] A review of the Court's CM/ECF system indicates that Bahamonde has been an attorney in ten cases, including this one, in the Southern District of New York.[43] Five of those cases, including this one, were brought under the FHA. The results in these cases are mixed. One was dismissed on summary judgment, one was voluntarily dismissed, one resulted in a settlement which did not involve a court determination of legal fees, and the other remains pending. None of these cases reveal what rate Bahamonde customarily charges.

Second, even assuming that FHA cases typically warrant a higher fee than ADA cases, that does not mean that it was reasonable for Bahamonde to charge $415 in this particular housing discrimination case or that an attorney of Bahamonde's experience could charge that rate. Tellingly, Bahamonde has overlitigated this case while at the same time failing to exercise billing discretion. Perhaps a more experienced attorney would not have made these mistakes. Accordingly, for these reasons, and based on the skill, experience, and the quality of Bahamonde's work, the appropriate hourly rate in this case is $350.[44] This amount is consistent with what courts have permitted on fee applications in this district.[45]

2. Reasonable Number of Hours

Plaintiffs bear the burden of establishing the reasonableness of the hours billed. Bahamonde has billed 723.5 hours of work on this case. That amount is absurd on its face.[46] However, plaintiffs have failed to put forth a cogent demonstration of the difficulties inherent in this case justifying that amount of work. Furthermore, plaintiffs have failed to summarize, organize, or categorize Bahamonde's billing records to assist the Court in analyzing the time spent throughout the various stages of this litigation. Instead, plaintiffs give minimal effort when describing this case, overtly overstate the tasks involved, and fail, even in broad strokes, to indicate how much time was spent per project.

For example, to justify the amount of time spent on discovery - not that plaintiffs bother to provide the total amount of time spent on discovery - Bahamonde states: "[d]iscovery in this matter consisted [of] numerous discovery requests, 16 deposition[s], Plaintiffs' motion to compel, Plaintiffs' motion for attorneys fees and costs, and Defendant's motion to strike the jury demand" and "[b]ecause Plaintiffs' claims were hard-fought and contentious, it took a tremendous effort by parties' counsel, which included hundreds of emails and voice communcations."[47] Plaintiffs also claim that "in view of the discovery that took place in the underlying action, the time claimed is completely reasonable. Here, there were a total of 16 depositions and three motions."[48] Whatever these descriptions mean, they do not provide sufficient detail to meet plaintiffs' burden of showing this Court that there was anything particularly difficult about this case.[49]

The problem for plaintiffs is that based on my review of the record, this was a wholly unremarkable discrimination case. The big issues were whether Helene and Jennifer Hines, two disabled tenants of a Co-Op, could bring their assistance dogs on the passenger elevator, and whether Helene Hines could park her car in the "No Parking" zone abutting the building's entryway. Not surprisingly, the case settled in less than year with the Co-Op making some concessions and paying some damages. Its hard to imagine that the modest outcome here was not within reach earlier in the case.

Thus, neither the complexity nor the results in this case could possibly justify the time spent. Rather, in order to expend 723.5 hours for this case, Bahamonde spent far too much time on discrete projects, over-litigated matters, and otherwise failed to exercise billing judgment. For example, at the very beginning of the case, Bahamonde billed 67.2 hours drafting the complaint and communicating with plaintiffs about it. This amount of time is unreasonable for a 27-page document that includes boilerplate.[50] This is especially true based on Bahamonde's experience drafting the complaints in the four actions in the Southern District mentioned above, litigating "nearly 200 housing and disability discrimination actions, "[51] which presumptively includes drafting complaints, and representing Helene Hines in several actions concerning the use of her support dogs in retail establishments.[52]

Plaintiffs claim that Bahamonde only spent 58.2 hours drafting the complaint, [53] but even 58.2 hours is far too much time for a 27-page complaint. Plaintiffs further contend that this amount of time is justified because

this case sets forth a thirteen year fact pattern comprising hundreds of documents, the respective medical histories of Plaintiffs Helene Hines and Jennifer Hines, Defendant's repeated refusal to provide Plaintiffs with a number of reasonable accommodations, along with analysis in formulating each claim asserted by Plaintiffs. Even a cursory review of the Compliant
[ sic ] illustrates that the circumstances underlying Plaintiffs' claims are fact intensive and based on an extensive amount of research.[54]

The impression given by a cursory review of the FAC aside, plaintiffs' argument proves too much. Under the FHA, plaintiffs were only required to "satisfy [Federal Rule of Civil Procedure] Rule 8(a)'s standard of a short and plain statement of the claim showing" entitlement to relief.[55] Nothing was achieved by tracing thirteen years and adding layers of detail when it is evident that "amplification [was not] needed to render the claim[s] plausible."[56]

There are far greater problems in plaintiffs' application than the time spent on the complaint. Even if Bahamonde only spent 58.2 and not 67.2 hours drafting the complaint - or 31.7 and not 32.8 hours drafting a motion for a temporary injunction and restraining order that was never filed, [57] or 25.6 hours and not 49.4 hours drafting opposition to defendant's successful motion to strike the jury demand, [58] or some unspecified amount of time less than 29 hours drafting a six-page letter to Magistrate Judge Kevin Nathaniel Fox for the purposes of settlement discussions - he still spent 723.5 hours for this case. How is that possible? Of course, it was plaintiffs' burden to justify the expenditure of that amount of time and they have not. Given the amount of time billed in this case - and the fact that many of the billing entries included in the initial 80-page billing report describe multiple tasks[59] - plaintiffs should have at least provided ballpark figures or a percentage for the major tasks in this case.

But perhaps this failure was intentional. The sum of the low-end numbers suggested by plaintiffs above - 58.2 (the complaint), 31.7 (drafting an unfiled motion), 25.6 (drafting opposition to the motion to strike) - plus the 29 hours for the submission to Magistrate Judge Fox, and the roughly 40 hours on the reply in support of the instant fee application, is 184.5 hours. To that I will add additional amounts of time allocated to tasks as described by defendant - 2.7 hours on a retainer agreement and statement of clients' responsibilities[60] and 77 hours communicating with plaintiffs - as well as the 22.6 hours I calculate Bahamonde to have billed on the initial papers in support of the instant fee application.[61] That totals to 102.3 hours, which added to 184.5 hours, comes to 286.8. That means that even with all these major events in this litigation taken into consideration, Bahamonde must still account for 436.7 additional hours divided among a handful of court conferences, including the one-day settlement conference before Magistrate Judge Fox, discovery, settlement discussions, and miscellaneous items. There is just no way to reasonably allocate that amount of time across these tasks.[62]

Accordingly, I find that a fifty (50) percent reduction in the total number of hours expended is necessary to correct for excessive billing, over litigation, and counsel's utter failure to exercise billing judgment. The fact that the attorney's fees are provided for by statute is not a license for either undisciplined prosecution of a case or unfettered billing practices. Fifty percent of 674.5[63] hours is 337.25, which at $350 per hour, results in an attorney's fee award of $118, 037.50.[64]

B. Costs

By contrast to plaintiffs' request for fees, their clillim for costs is well documented and seems reasonable in light of the circumstances. Accordingly, defendant's objections are overruled and the full amount of costs is awarded.


For the foregoing reasons, plaintiffs are awarded! $118, 037.50 in fees and $6, 702.69 in costs. The Clerk of the Court is directed to close this motion [Docket No. 47]. Plaintiffs are directed to submit a revised judgment reflecting the award of the attorney's fees and costs.


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