United States District Court, S.D. New York
MITCHELL H. KOSSOFF, Plaintiff,
RICKEY FELBERBAUM and FLORIDA FORECLOSURE ATTORNEYS, PLLC, Defendants. FLORIDA FORECLOSURE ATTORNEYS, PLLC, Counterclaim-Plaintiff,
MITCHELL H. KOSSOFF, Counterclaim-Defendant.
OPINION AND ORDER
W. SWEET U.S.D.J.
Mitchell H. Kossoff ("Kossoff" or the
"Plaintiff") and Defendants Rickey Felberbaum
("Felberbaum") and Florida Foreclosure Attorneys,
PLLC ("FFA" and, together with Felberbaum, the
"Defendants") have submitted conflicting proposed
judgments, pursuant to the Court's Opinion of December
19, 2017 (the "Opinion, " Dkt. No. 141). Dkt. Nos.
142, 146-47. The Opinion contained the Court's findings
of fact and conclusions of law following a bench trial held
between June 5 and June 19, 2017. The annexed Judgment, dated
January 17, 2018, is based on those findings and conclusions
in addition to the following conclusions made after
consideration of the parties' submissions.
parties contest the number of hours that Kossoff worked and
for which he is entitled to recovery under his unjust
enrichment claim. The hours as counted by Defendants, which
extricates hours detailed on the timesheets that were either
outside the established timeframe parameters or not on behalf
of FFA, or which added reasonable reductions for travel time
billed, accords with the parameters of work for which Kossoff
established at trial he reasonably expected
compensation. See Opinion, 2017 WL 6507122, at
M-5. As such, Kossoff is entitled to recover for 609.3 hours
of work at his standard hourly rate of $450.
parties contend that each is entitled to prejudgment interest
on their respective recovery awards. Under New York C.P.L.R.
§ 5001, which applies in this diversity action, "in
an action of an equitable nature the court has discretion
over what interest to award" while "in actions for
a breach of contract or property loss the statutory rate [of
9 percent per annum] is mandatory." Finger Lakes
Bottling Co. v. Coors Brewing Co., 7 48 F.Supp.2d 286,
290 (S.D.N.Y. 2010) (citing C.P.L.R. § 5001(a)); see
C.P.L.R. § 5004. By statute, FFA is entitled to
prejudgment interest on the amount of its award, which equals
the unpaid portion of the Note, starting from the date the
principal payment of the Note was due, February 1, 2014,
until the date of judgment. Given the relationship of the
parties and the efforts that Kossoff has established he made
working both for FFA and to acquire payment for his services,
the Court finds that equity warrant prejudgment interest on
his award as well, which will be calculated starting from
April 6, 2013, the date Kossoff renounced the Agreement and
severed ties with FFA, through to the date of judgment, using
the same New York statutory rate of 9 percent per annum.
See Stillman v. In Service Am. Inc., 738 F.Supp.2d
480, 483 (S.D.N.Y. 2010) (granting prejudgment interest on
state law quantum merit claim), aff'd,
455 Fed.Appx. 48 (2d Cir. 2012).
parties contest how to apply paragraph (ii) of the Note, a
provision that requires payment for costs and expenses
incurred in seeking to collect on the Note, which includes an
additional 5 percent sum "of the amount owing on account
of this Note at the time of such reference" for
attorneys' fees. Note ¶ ii. The amount owing of the
Note at all times of reference has been established as $515,
000.00, which is the amount from which to calculate the 5
percent for attorneys' fees. Plaintiff's argument
that the calculation should be based on the sum to be
collected by FFA after offsetting Plaintiff's unjust
enrichment recovery is unfaithful to the text of the Note.
the parties contest the recovery of costs, with each claiming
it is entitled to costs as the prevailing party under
Fed.R.Civ.P. 54(d). Under the terms of the Note, Defendants
are entitled to costs and expenses accrued in the collection
of monies owed on the Note under the terms of the Note. Note
¶ ii. Aside from those contracted-for costs, however,
each side shall bear whatever remains of its own costs, as
each side presented and prevailed on respective
"meritorious claims." Studiengesellschaft Kohle
mbh v. Novamont Corp., 548 F.Supp. 234, 236 (S.D.N.Y.
1981); see also 10 Wright, Miller & Kane,
Federal Practice and Procedure § 2668 (3d ed.
1998) ("The court's discretion embraces both
allowing and disallowing all costs or only particular items.
. . . This result has been considered appropriate when
neither side entirely prevailed or when both sides
 Capitalized terms not otherwise
defined in this Judgment have the meanings set forth in the
 Although this circuit's customary
50 percentage reduction for travel time is regularly applied
in the context of attorneys' fees awards, the underlying
logic readily applies to this equitable judgment: that a
reduction for such billed time is necessary because "it
is unlikely that counsel can ... be operating at 100%
productivity discussing matters with his client" while
traveling. Dancy v. McGinley, 141 F.Supp.3d 231, 243
(S.D.N.Y. 2015); see also Barfield v. N.Y. City Health
& Hospitals Corp., 537 F.3d 132, 139, 151 (2d Cir.
2008) (affirming district court's determination ...