Opinion
04 Civ. 1060 (HBP).
June 27, 2006
MEMORANDUM OPINION AND ORDER
I. Introduction
In this diversity action, plaintiff, Denise Garbarino, claimed that the defendants, her former employers, failed to fully compensate her in accordance with the terms of their oral employment contract. The parties consented to my exercising plenary jurisdiction over this matter pursuant to 28 U.S.C. § 636(c), and the matter was tried before me in January of 2006. Following a five-day jury trial, the jury found for plaintiff and awarded her $143,052.42.
Plaintiff now moves to recover attorney's fees, pursuant to New York Labor Law Section 198, prejudgment and postjudgment interest and costs. Defendants have not opposed the motion. For the reasons that follow, plaintiff is awarded attorney's fees in the amount of $47,227.50, prejudgment interest in the amount of $57,142.08 plus $35.27 per day from the date of this Order to the date judgment is entered by the Clerk of the Court and post-judgment interest in accordance with 28 U.S.C. § 1961. Plaintiff's motion for costs is denied without prejudice.
II. Facts
Defendants employed plaintiff as a salesperson from May 24, 2001 to September 4, 2002. Plaintiff claimed that defendants orally agreed that plaintiff's compensation would consist of a starting bonus, salary and commissions, and that on multiple occasions over the course of her employment, defendants paid her less than agreed. The parties stipulated that defendants paid plaintiff $89,942.43 in salary and $11,500 in commissions, totaling $101,442.43. Plaintiff claimed that she was owed an additional $143,052.42 under the terms of the oral agreement, including $26,373.50 in salary, $109,178.92 in commissions and a $7,500 starting bonus.
The jury credited plaintiff's allegations and awarded her the total amount sought — $143,052.42.
III. Analysis
A. Attorney's Fees and Plaintiff's Costs
In diversity cases, attorney's fees are considered substantive and are governed by state law. Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 177 (2d Cir. 2005); McGrath v. Toys "R" Us, Inc., 356 F.3d 246, 249 (2d Cir. 2004); Cotton v. Slone, 4 F.3d 176, 180 (2d Cir. 1993).
Count one of the complaint alleges defendants violated New York Labor Law Section 191(1)(c), which requires an employer to pay a commission salesman "wages, salary, drawing account, commissions and all other monies earned or payable in accordance with the agreed terms of employment, but . . . not later than the last day of the month following the month in which they are earned." A "commission salesman" is "any employee whose principal activity is the selling of any goods, wares, merchandise, [or] services . . . and whose earnings are based in whole or in part on commissions." N.Y. Labor Law § 190(6). A commission salesman who prevails upon a claim brought pursuant to Section 191(c) is entitled to recover reasonable attorney's fees. N.Y. Labor Law § 198(1-a) ("In any action instituted upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee reasonable attorney's fees. . . ."); Gottlieb v. Kenneth D. Laub Co., 82 N.Y.2d 457, 464-65, 626 N.E.2d 29, 33-34, 605 N.Y.S.2d 213, 217-18 (1993); Simpson v. Lakeside Eng'g, P.C., 26 A.D.3d 882, 883, 809 N.Y.S.2d 710, 712 (4th Dep't 2006); Carlson v. Katonah Capital, L.L.C., No. 602831/05 (BJF), 2006 WL 273548 at *2 (N.Y.Sup.Ct. Jan. 27, 2006); see Chu Chung v. New Silver Palace Restaurants, Inc., 272 F. Supp.2d 314, 317 (S.D.N.Y. 2003).
While employed by defendant, plaintiff was a "commission salesman" as defined by New York Labor Law Section 190(6) because her principal activity was selling services for defendants. At trial, plaintiff prevailed in showing that defendants violated Section 191(1) (c) by failing to pay plaintiff earned salary and commissions before the end of the month following the month they were earned. Therefore, pursuant to Section 198(1-a), plaintiff is entitled to recover reasonable attorney's fees.
Plaintiff seeks attorney's fees in the amount of $57,187.50. The amount represents the total time plaintiff's attorney, Michael B. Pisani, Esq., expended on the litigation, 228.8 hours, multiplied by his rate of $250 per hour. Mr. Pisani is the only attorney who worked on this case on behalf of plaintiff.
Of the several reported New York State cases that award attorney's fees pursuant to New York Labor Law Section 198(1-a), only one of them, Bauin v. Feinberg, No. 11568/04 (EG), 2005 WL 636700 (Civ.Ct., City of N.Y. Mar. 18, 2005), explains how to calculate the fee. In Bauin, the court first determined whether the attorney's rate was reasonable by considering the attorney's level of experience. The court then looked at the reasonableness of the hours the plaintiff claimed her attorney expended and, after finding the attorney spent an unreasonable amount of time working on certain aspects of the case, reduced the hours claimed accordingly. To calculate the fee, the court then multiplied the hourly rate by the reasonable number of hours expended. Bauin v. Feinberg, supra, 2005 WL 636700 at *8.
Of the two federal cases I have found that have awarded attorney's fees pursuant to Section 198(1-a), one looked to Second Circuit precedent, rather than state law, in determining how to calculate the fee award, Craven v. Verify Med., Inc., 96 Civ. 6091 (HB), 2001 WL 1729729 at *4 (E.D.N.Y. Dec. 5, 2001), and the other, also relying on Second Circuit precedent, awarded fees pursuant to both federal and state law, see Tlacoapa v. Carregal, 386 F. Supp.2d 362, 369 (S.D.N.Y. 2005).
Although Bauin did not cite to any authority in deciding how attorney's fees should be calculated, the method the court used was consistent with the "lodestar" method commonly used by federal and state courts in New York to determine attorney's fee awards. See Goldberg v. Blue Ridge Farms, Inc., CV-04-5098 (CPS), 2005 WL 1796116 at *3 (E.D.N.Y. July 26, 2005); Wilson v. Car Land Diagnostics Ctr., Inc., 99 Civ. 9570 (GEL), 2001 WL 1491280 at *1 (S.D.N.Y. Nov. 26, 2001); Podhorecki v. Lauer's Furniture Stores, Inc., 201 A.D.2d 947, 948, 607 N.Y.S.2d 818, 819-20 (4th Dep't 1994); Thomas v. Coughlin, 194 A.D.2d 281, 284, 606 N.Y.S.2d 378, 380 (3d Dep't 1993); Friar v. Vanguard Holdings Corp., 125 A.D.2d 444, 447, 509 N.Y.S.2d 374, 377 (2d Dep't 1986); Rahmey v. Blum, 95 A.D.2d 294, 300-04, 466 N.Y.S.2d 350, 356-59 (2d Dep't 1983); Daimlerchrysler Corp. v. Karman, 5 Misc.3d 567, 568, 782 N.Y.S.2d 343, 345 (Sup.Ct. 2004);McIntyre v. Manhattan Ford, Lincoln-Mercury, 176 Misc.2d 325, 327-29, 672 N.Y.S.2d 230, 231-32 (Sup.Ct. 1997); 111 on 11 Realty Corp. v. Norton, 191 Misc.2d 483, 487-88, 742 N.Y.S.2d 529, 533 (Civ.Ct., City of N.Y. 2002).
Under the lodestar method, the fee is initially calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Rahmey v. Blum, supra, 95 A.D.2d at 303, 466 N.Y.S.2d at 358; accord Ciura v. Muto, 24 A.D.3d 1209, 1210, 808 N.Y.S.2d 842, 843 (4th Dep't 2005). "The lodestar may then be adjusted by taking 'into account the factors ordinarily considered by New York courts when evaluating requests for attorney's fees, including the time and skill required in litigating the case, the complexity of issues, the customary fee for the work, and the results achieved.'"Wilson v. Car Land Diagnostics Ctr., Inc., supra, 2001 WL 1491280 at *1, quoting Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 53 (2d Cir. 1992); see Utica Mut. Ins. Co. v. Magwood Enters., 15 A.D.3d 471, 472, 790 N.Y.S.2d 179, 181 (2d Dep't 2005); M. Sobol, Inc. v. Wykagyl Pharmacy, Inc., 282 A.D.2d 438, 439, 723 N.Y.S.2d 88, 89 (2d Dep't 2001); In re Karp, 145 A.D.2d 208, 215, 537 N.Y.S.2d 510, 514 (1st Dep't 1989); Jordan v. Freeman, 40 A.D.2d 656, 656, 336 N.Y.S.2d 671, 671 (1st Dep't 1972).
The party seeking an attorney's fee award has the burden of establishing the reasonableness of the fee. Klein v. Robert's Am. Gourmet Food, Inc., 28 A.D.3d 63, 75, 808 N.Y.S.2d 766, 776 (2d Dep't 2006); Gutierrez v. Direct Marketing Credit Servs., Inc., 267 A.D.2d 427, 427-28, 701 N.Y.S.2d 116, 117 (2d Dep't 1999); Daimlerchrysler Corp. v. Karman, supra, 5 Misc.3d at 568, 782 N.Y.S.2d at 345.
1. Reasonableness of the Hours Expended
To determine the number of hours reasonably expended on the litigation, New York courts consider the following:
(1) hours which reflect inefficiency or duplication of services should be discounted; (2) hours that are excessive, unnecessary or which reflect "padding" should be disallowed; (3) legal work should be differentiated from nonlegal work such as investigation, clerical work, the compilation of facts and other types of work which can be accomplished by nonlawyers who command lesser rates; (4) time spent in court should be differentiated from time expended for out-of-court services; and (5) the hours claimed should be weighed against the court's own knowledge, experience and expertise as to the time required to complete similar activities.McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., supra, 176 Misc.2d at 328, 672 N.Y.S.2d at 232; see Goldberg v. Blue Ridge Farms, Inc., supra, 2005 WL 1796116 at *3; Rahmey v. Blum, supra, 95 A.D.2d at 300-01, 466 N.Y.S.2d at 357; In re Spingarn, 164 Misc.2d 891, 894, 626 N.Y.S.2d 650, 652 (Sup.Ct. 1995).
Mr. Pisani's contemporaneous time records indicate that in over two years litigating this case, he expended 228.75 hours, which included filing the complaint, attending conferences, conducting discovery, litigating a discovery dispute, taking depositions, preparing for trial, drafting proposed jury instructions, five days of trial and drafting the attorney's fees motion. For the most part, I find that the hours the attorney expended were reasonable and that the time records do not reflect inefficiency, duplication of efforts or excessive or unnecessary hours. Moreover, plaintiff is not seeking fees for any time her attorney spent on nonlegal, clerical work and also notes her attorney eliminated from the time sheets "isolated, incidental activities requiring less than one half hour of attention," and time spent researching local rules (Memorandum in Support of Plaintiff's Application for Attorneys Fees, Costs, Pre-Judgment and Post-Judgment Interest ("Pl. Memo.") at 7 (Docket Item 18)).
I find, however, that the number of hours claimed should be reduced because several of the entries in the time records lacks sufficient detail — they give a total number of hours for multiple tasks without delineating how much time was spent on each task individually, making it impossible to determine how many hours were spent on certain tasks. Such entries include five hours with an accompanying description "research Shareholder Liability under wage law; motion to dismiss"; six hours with an accompanying description "Draft proposed jury instructions; review Mayhew Deposition"; and three-and-a-half hours with the accompanying description "Conference Call — J. Pitman; trial schedule (no wed trial day); neg misrep motion; research duty under NY PJI; email S Richardson; prep for cross examination T Roven, S Roven, W Snyder, P Castellanos." Even if the time expended on these tasks was reasonable, the vagueness of the entries alone are enough to reduce the fee. See Goldberg v. Blue Ridge Farms, Inc., supra, 2005 WL 1796116 at *3 ("Courts routinely reduce fee awards where time sheets contain such 'mixed entries' that do not provide the adversary the definiteness required to dispute their accuracy."), citing Domegan v. Ponte, 962 F.2d 401, 425 (1st Cir. 1992), vacated and remanded on other grounds, 507 U.S. 956 (1993), and In re Donovan, 877 F.2d 982, 995 (D.C. Cir. 1989); U.S. Football League v. Nat'l Football League, 704 F. Supp. 474, 477 (S.D.N.Y.), aff'd, 887 F.2d 408 (2d Cir. 1989) (reducing fees because some entries in time records were vague).
The problem caused by the ambiguous entries in the time records is exacerbated by the fact that some of the entries appear to list unnecessary or excessive work. For example, Mr. Pisani claims to expend hours researching a motion to dismiss even though no motion to dismiss was ever filed and, at the time the entry was made, there was no reason to believe a motion to dismiss was forthcoming in light of the fact that an answer had already been filed. Several other vague entries relate to the time expended drafting the proposed jury instructions. Although the ambiguities make it impossible to determine the precise number of hours Mr. Pisani expended drafting the instructions, it at least appears that the hours expended drafting the instructions were excessive considering the poor quality of the submission.
The proposed jury instructions provided me with little guidance as they, among other things, did not address all the elements of the breach of contract claim, inadequately expounded upon those elements that were included and inexplicably focused on plaintiff's detrimental reliance in working for defendants rather than on the central issue of whether the parties had formed a contract.
Because a reduction in the hours claimed is appropriate and it is impossible to determine how many hours Mr. Pisani expended on certain tasks, I find that the most prudent way of effectuating the reduction is to reduce the total hours claimed by 10%. Under New York law, it is necessary to distinguish between the time the attorney expended in court and the time expended out of court.Becker v. Empire of Am. Fed. Sav. Bank, 177 A.D.2d 958, 959, 577 N.Y.S.2d 1001, 1003 (4th Dep't 1991); McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., supra, 176 Misc.2d at 333, 672 N.Y.S.2d at 235. Mr. Pisani claims he expended 40 hours in court and 188.8 hours out of court. Reducing each of these hours by 10% yields 36 hours for in-court time and 169.9 hours for out-of-court time, thus making the total hours that I find were reasonably expended 205.9. See Tlacoapa v. Carregal, supra, 386 F. Supp.2d at 371 (reducing fee award by 35%); U.S. Football League v. Nat'l Football League, supra, 704 F. Supp. at 477 (reducing fee award by 10%);Daimlerchrysler Corp. v. Karman, supra, 5 Misc.3d at 572, 782 N.Y.S.2d at 348 (reducing fee award by 10%).
2. Reasonable Rates Charged
Reasonable hourly rates are determined by reference to fees in the community in which the action is pending — here, the Southern District of New York — and to the skill and experience of the attorneys who worked on the matter. Wells v. Crosson, 210 A.D.2d 932, 932, 621 N.Y.S.2d 974, 975 (4th Dep't 1994); Rahmey v. Blum, supra, 95 A.D.2d at 302, 466 N.Y.S.2d at 357;Daimlerchrysler Corp. v. Karman, supra, 5 Misc.3d at 568, 782 N.Y.S.2d at 345; McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., supra, 176 Misc.2d at 328, 672 N.Y.S.2d at 232; see Tlacoapa v. Carregal, supra, 386 F. Supp.2d at 369.
Mr. Pisani requests a rate of $250 per hour (Pl. Memo. at 6; Certification of Michael B. Pisani, sworn to February 17, 2006, ¶ 3, annexed to Pl. Memo.). I find this rate to be reasonable for the time expended in court in light of Mr. Pisani's experience in commercial and employment matters and because he was plaintiff's only attorney (Pl. Memo. at 6).Access 4 All, Inc. v. Park Lane Hotel, Inc., 04 Civ. 7174 (SAS) (JCF), 2005 WL 3338555 at *4 (S.D.N.Y. Dec. 7, 2005) ("Within the last five years, courts have approved rates ranging from $250 to $425 per hour for work done by partners in small firms in this district."), citing, inter alia, Pascuiti v. N.Y. Yankees, 108 F. Supp.2d 258, 266 (S.D.N.Y. 2000) (finding a reasonable rate of $250 per hour for attorneys at small firm with twenty-nine and twenty-eight years of experience); Tlacoapa v. Carregal, supra, 386 F. Supp.2d at 369-70 (finding reasonable rate of $250 per hour for lead counsel); Smith v. Wettenstin, 02 Civ. 5806 (MHD), 2003 WL 22966281 at *4 (S.D.N.Y. Dec. 16, 2003) (awarding $250 per hour rate for relatively junior solo practitioner). I further find that a rate of $225 per hour is reasonable for Mr. Pisani's out-of-court time. See McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., supra, 176 Misc.2d at 333, 672 N.Y.S.2d at 235 (awarding rates of $222 for out-of-court time and $291 for in-court time).
3. Fee Calculation
Multiplying the reasonable hourly rates of $250 per hour by the 36 hours reasonably expended in court and $225 per hour for the 169.9 hours reasonably expended out of court yields the following amounts:
In-Court Time
36 hours × $250/hour = $ 9,000
Out-of-Court Time
169.9 hours × $225/hour = $ 38,227.50
TOTAL $ 47,227.50
4. Adjustments to Lodestar
I find that $47,227.50 is an entirely reasonable fee under the circumstances of this case and that an adjustment to the lodestar figure is unnecessary.
5. Plaintiff's Costs and Expenses
Plaintiff also seeks to recover costs. Plaintiff's application is premature; applications for costs should be filed with the clerk within thirty days after entry of the final judgement pursuant to the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York rule 54.1(a). Final judgement has not been entered here. Plaintiff's motion is therefore denied without prejudice to an appropriate application to the Clerk of the Court.
B. Prejudgment and Post-Judgment Interest
Plaintiff also seeks prejudgment and post-judgment interest.
In Wechsler v. Hunt Health Systems, Ltd., 330 F. Supp.2d 383, 434-35 (S.D.N.Y. 2004), the Honorable Peter K. Leisure, United States District Judge, set forth the principles applicable to an award of prejudgment interest in a diversity case such as this:
In diversity actions, the awarding of prejudgment interest is considered a substantive issue and is, therefore, governed by state law. See Schwimmer v. Allstate Ins. Co., 176 F.3d 648, 650 (2d Cir. 1999). New York law provides that "Interest shall be recovered upon a sum awarded because of a breach of performance of a contract." N.Y. CPLR § 5001 (McKinney 1992). In an action at law for breach of contract, "prejudgment interest is recoverable as of right." Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 362, 342 (2d Cir. 1993); see Barry v. Atkinson, No. 96 Civ. 84436, 1999 WL 605422, at *9 (S.D.N.Y. Aug. 10, 1999). New York's prejudgment interest rate for breach of contract cases is 9% per annum, which accrues on a simple, rather than a compound, basis. See N.Y. CPLR § 5004; Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 90 (2d Cir. 1998) ("New York courts have held that in a breach of contract action of this sort prejudgment interest must be calculated on a simple interest basis at the statutory rate of nine percent." (citing Patane v. Romeo, 235 A.D.2d 649, 652 N.Y.S.2d 142, 144 (3d Dep't 1997); Kaufman v. Le Curt Constr. Co., 196 A.D.2d 577, 601 N.Y.S.2d 186, 187, 188 (2d Dep't 1993))).
Prejudgment interest "shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date." N.Y. CPLR § 5001(b); see Conway v. Icahn Co., 16 F.3d 504, 512 (2d Cir. 1994). "Accordingly, where damages are incurred at various times after the cause of action accrues, section 5001 grants courts wide discretion in determining a reasonable date from which to award prejudgment interest." Conway, 16 F.3d at 512. See also Dollar Rapido, Inc. v. eCHEX Int'l, Inc., 04 CV 3280 (NGG) (CLP), 2006 WL 985630 at *6 (E.D.N.Y. Apr. 14, 2006) (adopting Report and Recommendation); Diamant v. Dynasty Diamond Jewelry Group Corp., 04 CV 3844 (GBD) (DF), 2006 WL 728802 at *4 (S.D.N.Y. Mar. 20, 2006) (adopting Report and Recommendation); Brassco, Inc. v. Klipo, 99 Civ. 3014 (PAC), 2006 WL 223154 at *20 (S.D.N.Y. Jan. 27, 2006); Donovan v. Dairy Farmers of Am., Inc., 53 F. Supp.2d 194, 197-98 (N.D.N.Y 1999).
Because plaintiff was awarded damages for a breach of contract, she is entitled to recover prejudgment interest on the award. N.Y.C.P.L.R. 5001. Although it is clear that plaintiff incurred damages on multiple occasions — every time defendants failed to fully compensate her — plaintiff has failed to provide the dates that her damages accrued. I will therefore use an intermediate date from which to calculate the prejudgment interest, and find that a reasonable intermediate date is the median date between the date plaintiff began working for defendants, May 24, 2001, and the date she was terminated, September 4, 2002, which is January 17, 2002. N.Y.C.P.L.R. 5001(b); Wechsler v. Hunt Health Sys., Ltd., supra, 330 F. Supp.2d at 436 (fixing one date for purpose of calculating prejudgement interest when damages accrued on several different dates). Thus, plaintiff should be awarded prejudgment interest from January 17, 2002 until the entry date of final judgment, accruing on a simple interest basis at a rate of 9% per year. N.Y.C.P.L.R. 5001, 5004;Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 90 (2d Cir. 1998).
The jury awarded plaintiff $143,052.42. At 9% per year calculated on a simple interest basis, plaintiff is owed $12,874.72 per year, or $35.27 per day, in prejudgment interest on the award. Thus, from January 17, 2002 until the date of this Order, which is four years and 160 days, plaintiff is owed $57,142.08. The Clerk of the Court is instructed to add an additional $35.27 per day to this amount from the date of this Order to the final entry date of judgment.
Post-judgment interest is calculated pursuant to federal law in diversity cases. 28 U.S.C. § 1961; see Lankler Siffert Wohl, LLP v. Rossi, 02 Civ. 10055 (RWS), 2004 WL 541842 at *5 (S.D.N.Y. Mar. 19, 2004) (noting that "the plain language of [Section 1961(a)] indicates that it applies to 'any money judgment in a civil case recovered in a district court,'" including diversity cases (emphasis in original)), aff'd mem., 125 Fed. Appx. 371 (2d Cir. 2005); Underwood v. B-E Holdings, Inc., 269 F. Supp.2d 125, 142-43 (W.D.N.Y. 2003) (noting that every circuit court that has addressed the issue — the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh circuits — have all concluded that 28 U.S.C. § 1961(a) should be applied in diversity cases); Caruolo v. AC S, 93 Civ. 3752 (RWS), 2001 WL 125678 at *2 (S.D.N.Y. Feb. 13, 2001); see also New England Ins. Co. v. Healthcare Underwriters Mut. Ins. Co., 295 F.3d 232, 249 n. 30 (2d Cir. 2002) (stating, without discussing underlying reasoning, that district court in diversity case should apply federal law for post-judgment interest); Andy Warhol Found. for the Visual Arts, Inc. v. Barth Dreyfuss, 04 Civ. 9991 (HB) (KNF), 2006 WL 752766 at *4 (S.D.N.Y. Jan. 6, 2006) (Report and Recommendation) (same); TMS Entm't Ltd. v. Madison Green Entm't Sales, Inc., 03 Civ. 0517 (GBD) (RLE), 2005 WL 2063786 at *4 (S.D.N.Y. Aug. 16, 2005) (Report and Recommendation), adopted by 2006 WL 779170 (S.D.N.Y. Mar. 23, 2006). Plaintiff is entitled to post-judgment interest pursuant to 28 U.S.C. § 1961.
I note that some courts in this district have applied state law in awarding post-judgment interest in diversity cases. See Sere v. McNally Int'l Corp., 00 Civ. 8370 (KNF), 2004 WL 187128 at *2 (S.D.N.Y. Jan. 29, 2004); Kaledioscope Media Group, Inc. v. Entertainment Solutions, Inc., 97 Civ. 9369 (LTS) (RLE), 2001 WL 849532 at *5 (S.D.N.Y. July 19, 2001) (Report and Recommendation), adopted by 2002 WL 989527 (S.D.N.Y. May 14, 2002); DVCi Technologies, Inc. v. Timessquaremedia.com, Inc., 00 Civ. 0207 (RLE), 2000 WL 33159189 at *3 (S.D.N.Y. Nov. 29, 2000) (Report and Recommendation); Alfred Haroun Sons v. U.S. Oil Corp., 92 Civ. 7223 (DLC), 1994 WL 652482 at *4 (S.D.N.Y. Nov. 18, 2004). I am persuaded that federal law applies to determining post-judgment interest in this case, however, because of the plain language of 28 U.S.C. § 1961(a) which states that it applies to "any money judgment in a civil case recovered in a district court" and the overwhelming number of circuits that have ruled on the issue and found that federal law applies under these circumstances.
IV. Conclusion
For all the foregoing reasons, plaintiff is entitled to recover from defendants $47,227.50 in attorney's fees; prejudgment interest in the amount of $57,142.08 plus $35.27 per day from the date of this Order to the entry date of final judgment to be calculated by the Clerk of the Court; and post-judgment interest in accordance with 28 U.S.C. § 1961. Plaintiff's motion seeking costs is denied without prejudice.