United States District Court, E.D. New York
MEMORANDUM AND ORDER
ORENSTEIN U.S. MAGISTRATE JUDGE.
parties jointly move for approval of a settlement on behalf
of the infant plaintiff, Michael Khabbaz. For the reasons
set forth below, I grant the motion conditioned on the
parties' agreement to accept a reduction in the portion
of the settlement amount to be set aside as to attorneys'
fees and costs. Specifically, I will approve the proposed
settlement if the parties agree to reduce the amount of
attorneys' fees from $19, 819.00 to $17, 106.25.
assume the reader's familiarity with the facts and
procedural history of this action, as described in the
pleadings and docket entries. I include here only additional
background information relevant to the instant motion.
Michael Khabbaz and his mother, Valentina Khabbaz, sued
defendant Costco Wholesale Corporation ("Costco")
to recover damages arising from the personal injuries that
Michael Khabbaz sustained while riding an escalator at a
Costco location in Brooklyn, New York. Docket Entry
("DE") 1 at 7-12 (Complaint, appended to removal
notice). After the case was removed to this court, the
parties agreed to refer it to a magistrate judge for all
purposes including the entry of judgment. DE 12; see
28 U.S.C. § 636(c).
March 24, 2016, the parties notified me that they had reached
an agreement to settle the case. DE 26. They filed a motion
to approve the proposed infant compromise on June 21, 2016.
DE 29. I discussed the proposal with clients and counsel at a
hearing on July 14, 2016; although I anticipated approving
the settlement as fair, I noted that I could not do so
without first receiving additional information required under
applicable law, including counsel's billing records and
cost documentation. DE 31 (minute entry); see Loc.
Civ. R. 83.2(a); N.Y. C.P.L.R. § 1208. The parties
submitted a revised motion for infant compromise on July 25,
2016. DE 32. The submission included the plaintiffs'
retainer agreement with counsel and records documenting
costs, but did not include contemporaneous billing records.
See DE 32-2. During a telephone conference held on
August 15, 2016, the plaintiffs' counsel reported that no
contemporaneous billing records are available, and instead
offered to submit an estimate of the hours expended on this
matter; I responded that I would consider such an estimate to
determine an appropriate fee reduction. DE 33 (minute entry).
Counsel filed the billing estimate on August 18, 2016. DE 34.
infant plaintiff's counsel is required to submit
contemporaneous time records to support an application for
attorneys' fees. See R.G. v. Federated Inc.,
2016 WL 3072396, at *2 (S.D.N.Y. May 27, 2016). Where, as
here, counsel fails to submit such records, courts reduce the
amount of fees awarded. See id. at *2 (reducing fees
awarded by five percent where infant's counsel submitted
the retainer agreement but no time records); Griffiths ex
rel. Griffiths v. Jugalkishore, 2010 WL 4359230, at *7
(S.D.N.Y. Oct. 14, 2010) (report and recommendation
suggesting thirty percent reduction in similar
circumstances), adopted, 2010 WL 4365552 (S.D.N.Y.
Nov. 3, 2010). In R.G., as in this case, the infant
plaintiff's counsel submitted a retainer agreement and
reconstructed (not contemporaneous) billing records. The
court reduced the requested fee by five percent because it
found "no reason to doubt that these reconstructed time
records represent Plaintiff's counsel's best estimate
of his hours worked on this case, and nothing in the records
themselves suggests that they are wholly unreliable, other
than the fact that Plaintiff's counsel did not log his
time contemporaneously." 2016 WL 3072396, at *2.
plaintiffs seek $19, 819.00 in attorneys' fees, pursuant
to a one-third contingency fee provision in their retainer
agreement with counsel. See DE 32 (attorney
affirmation) at 3; DE 32-2 at 1 (retainer
agreement). The reconstructed billing records reflect
115 hours worked at an hourly rate of $250, for a total of
$28, 750.00 in fees. See DE 34. As explained below,
I conclude that those records do not support the
the reconstructed billing records do not sufficiently
identify the attorney who performed the work. See New
York State Ass'n for Retarded Children v. Carey, 711
F.2d 1136, 1148 (2d Cir. 1983) ("These records should
specify, for each attorney, the date, the hours expended, and
the nature of the work done."). Under such
circumstances, the court should base its fee award on the
lowest hourly rate from among the attorneys who could have
performed the work. See Alvarado v. Five Town Car Wash,
Inc., 2015 WL 5437254, at *3 (E.D.N.Y. July 23, 2015)
(report and recommendation), adopted, 2015 WL
5444930 (E.D.N.Y. Sept. 15, 2015). I therefore determine an
appropriate fee based on the assumption that all compensable
work was performed by the most junior member of the team of
lawyers who served as the plaintiffs' counsel: Robert S.
Whitbeck, who, according to the pertinent state bar records,
was admitted to practice in New York in 2014. See
New York State Unified Court System,
visited March 15, 2017).
hourly rate of $250 is higher than that usually awarded to an
attorney so recently admitted to practice; a more appropriate
rate is $175 per hour. See Koszkos v. Janton Indus.,
Inc., 2016 WL 4444329, at *8 (E.D.N.Y. Aug. 3, 2016)
(approving a rate of $175 per hour for an associate with two
years of experience) (report and recommendation),
adopted, 2016 WL 4444782 (E.D.N.Y. Aug. 23, 2016);
Rickettes v. Turton, 2015 WL 3868070, at *10
(E.D.N.Y. June 23, 2015) ("In the Eastern District of
New York, courts in recent years have approved hourly rates
from $300 to $450 for partners in law firms, $200 to $325 for
senior associates, and $100 to $200 for junior
the billing descriptions include some anomalies that call
into question the claimed number of hours. Counsel billed two
hours for a court appearance on March 24, 2015, but there is
no record of such a conference on the docket. DE 34 at 3.
Several tasks are block billed. Id. at 2 (billing
five hours for "25 calls"). Counsel also included
work typically performed by a paralegal. Id.
(billing one hour for "coping [sic] of summons &
complaint for service to process server"). The
uncertainties attendant to the after-the-fact reconstruction
in this case persuade me that a reduction to the claimed
hours worked is warranted. See, e.g.,
D.J. ex rel. Roberts v. City of New York, 2012 WL
5431034, at *7-8 (S.D.N.Y. Oct. 16, 2012) (report and
recommendation) (reducing the claimed hours spent working on
the case where plaintiff's counsel submitted inaccurate
and unreliable billing records), adopted, 2012 WL
5429521 (S.D.N.Y. Nov. 7, 2012). I conclude that a fifteen
percent reduction in the total number of hours is
appropriate, and will therefore approve fees based on an
hourly rate of $175 and a total of 97.75 hours of compensable
I will approve fees in the total amount of $17, 106.25. I
conclude that this small reduction "sufficiently
emphasizes the importance of contemporaneous time records to
the Court's analysis, while still providing suitable
compensation to Plaintiff's counsel for his work on this
case." R.G., 2016 WL 3072396, at *2.
reasons set forth above, I will grant the motion for infant
compromise if the parties agree to reduce the amount of
attorneys' fees from $19, 819.00 to $17, 106.25, with the
infant plaintiff to receive the difference. I respectfully
direct the parties to submit a status report by March 22,