Opinion
8134-08.
Decided May 2, 2011.
Roemer, Wallens Mineaux, LLP, (James W. Roemer, Esq., of Counsel), Attorneys for Petitioner, Albany, New York.
State of New York, Office of the Attorney General, (Douglas J. Goglia, Esq., of Counsel), Attorneys for Respondent, The Capitol, Albany, New York.
By Notice of Motion originally returnable on June 24, 2010, the plaintiffs/petitioners in the above captioned matters moved for an order consolidating the three actions/proceedings for purposes of determining and awarding attorney fees pursuant to 42 USC § 1988. The defendants/respondents oppose the application. Oral argument was held on April 18, 2011.
These cases were originally assigned to the Hon. Gerald W. Connolly, Acting JSC, who by Decision and Order dated November 9, 2010, vacated an earlier Decision and Order dated September 30, 2010 deciding the subject motion, and granted plaintiff/petitioners request for recusal. As a result the case was reassigned and the motion is being addressed anew.
In April, 2008, the Comptroller implemented new regulations affecting the membership interests of the plaintiffs/petitioners in the captioned cases. The premise for consolidation is that the core work challenging the Comptroller's actions was performed in the initial Swergold action; and then successfully applied in both D'Agostino and Hoover. Absent consolidation, a review of the time lines of each case, as discussed below, indicates that the application for attorney's fees in Swergold and D'Agostino would be untimely. Some background is in order.
By Decision and Order (Connolly, J.) entered May 13, 2009, in Swergold, the Court found sufficient facts were alleged to illustrate a due process violation and converted that aspect of the complaint into an Article 78 proceeding. With plaintiff's appeal pending, the Court issued a Decision and Order (Connolly, J.) in Hoover on September 23, 2009 granting the petitioner's due process claim. In turn, by Memorandum and Order decided February 25, 2010, the Appellate Division in Swergold effectively determined plaintiffs' due process claims had been rendered moot, that the other claims were premature, and dismissed the complaint.
In D'Agostino, by Decision and Order (Connolly, J.) entered August 20, 2009, the Court granted the petition and vacated the Comptroller's determination terminating petitioner's pension benefits and membership. By Memorandum and Order decided February 25, 2010, the Appellate Division dismissed the appeal, finding petitioner had received the entire relief sought in the petition and was thus not aggrieved.
After the instant attorneys fees motion was filed, the Appellate Division, by Memorandum and Order decided July 15, 2010, dismissed petitioner's appeal in Hoover as academic.
As confirmed at oral argument, this application does not present a claim for attorneys fees under the "New York State Equal Access to Justice Act" (CPLR Article 86). The attorney fees claim here is premised on the asserted due process violation and 42 USC § 1988. Although not expressly pled, the plaintiffs/
petitioners due process claim falls within the embrace of 42 USC § 1983, for which a "prevailing party" is entitled to an award of a reasonable attorney's fee (see Hensley v. Eckerhart, 461 US 424, 429; Maine v. Thiboutot, 448 US 1; Americans United for Separation of Church and State v. School Dist. of City of Grand Rapids, 835 F. 2d 627 [6th Cir]).
The threshold question presented is whether the application is timely. Section 1988 does not specify a time limitation for filing a fee application other than to authorize the Court "in its discretion" to award a fee. In White v. New Hampshire Dept. of Empl Sec ( 455 US 445, 454), the Supreme Court observed that an application that "unfairly surprises or prejudices the affected party" could be denied and that the district courts could adopt local rules setting a time limitation on fee applications. When, as here, a federal due process claim is brought in State Court, State procedures ordinarily govern (see Brown v. Western Railway of Alabama, 338 US 294; Matter of Alfonso v. Fernandez, 167 Misc 2d 793, 796; Lippman v. Bridgecrest Estates, 4 S W 3d 596, 1999 Mo App Lexis 2003). As noted by the Court in Alfonso, New York does not have a statute directly regulating the timeliness of a § 1988 fee application. Recognizing as much, plaintiffs/petitioners urge the Court to adopt a four-month standard, measured from the resolution of the appeals in each case. The Court in Alfonso was guided by the 30 day time limitation set forth in CPLR 8601(b), measured from the "final judgment" (Id 797). While, as noted above, this application is not based on New York's Equal Access to Justice Act, the analogy is viable. This is particularly so if the phrase " final judgment" (emphasis added) is measured from the resolution of the appeal. In Alfonso, judgment was entered on plaintiff's behalf at the direction of the Appellate Division, and the application filed 13 months later was deemed untimely (Id; see Alfonso v. Fernandez, 195 AD2d 46).
Here, both Swergold and D'Agostino were effectively dismissed by the Appellate Division on February 25, 2010. Even accepting that the 30 day time limitation is triggered by the appellate determination in these cases, the fee application was not filed until 99 days later on June 4, 2010. The Hoover appeal, as noted above, was pending when the fee application was filed.
Given the above, the Court finds that only the Hoover fee application has been timely made.
The issue thus turns to whether the three cases may be consolidated for purposes of awarding a fee. Pursuant to CPLR 602(a), "when actions involving a common question of law or fact are pending before a court" consolidation may be ordered (emphasis added). The determinative point here is that neither Swergold, nor D'Agostino were pending when this motion was filed. That the attorney work product generated in Swergold was utilized in Hoover does not otherwise sustain plaintiffs/petitioners consolidation argument.
Accordingly, the application to consolidate the three cases is denied.
As for Hoover's fee application, since the trial court granted the petition on Hoover's due process claim, the Court finds that petitioner was a "prevailing party" under 42 USC § 1988 (see Farrar v. Hobby, 506 US 103; Johnson v. Blum, 58 NY2d 454). Despite prevailing, petitioner appealed concerning the dismissal of his remaining claims. Notably, the Appellate Division dismissed the appeal, finding that petitioner was no longer aggrieved. Given this sequence, the Court finds that petitioner is entitled to an award of reasonable attorney fees for services performed at the trial level but not for services performed on the appeal. The services performed in Hoover are outlined in Exhibit "A" attached to the June 2, 2010 affidavit of Attorney Roemer. The attorney services were performed by an associate attorney at a fee rate of $175/hour. Services performed by the law clerk and paralegal were billed at a rate of $95/hour. These rates are reasonable, as is the total time charged for services at the trial court as outlined in Exhibit "A".
While several substantive arguments were dismissed by the trial court, these arguments were reasonably raised in the petition and keyed into the authority and actions of the Comptroller underlying this dispute. As such, defendants/
respondents application for a downward adjustment is rejected.
Accordingly, the Court hereby awards to petitioner an amount calculated for services charged and expenses incurred from November 12, 2008 through the filing of Notice of Entry on October 1, 2009, as listed in Exhibit "A" for an award of attorney fees in the amount of $10,251.50 and expenses in the amount of $718.01.
This Memorandum constitutes the Decision and Order of the Court. This
original Decision and Order is being returned to Attorneys for petititioner. The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.
Papers Considered:
(1)Notice of Motion returnable June 24, 2010; Affidavit of James W. Roemer, Jr., Esq. dated June 2, 2010 with Exhibits "A" — "L"; Affidavit of George J. Szary, Esq. dated
June 2, 2010 with Exhibits "A" — "D"; Memorandum of Law dated June 3, 2010;
(2)Affirmation of Douglas J. Goglia, Esq. dated June 17, 2010 with Exhibits "A" — "H"; Respondents'/Defendants' Memorandum of Law dated June 17, 2010;
(3)Affirmation of James W. Roemer, Jr. dated June 25, 2010 with Exhibti "A"; Reply Affidavit of David Hoover dated June 23, 2010; Reply Affidavit of Albert D'Agostino dated June 23, 2010; Reply Affidavit of Nathaniel Swergold dated June 23, 2010; Reply Memorandum of Law dated June 25, 2010;
(4)April 19, 2011 letter of Assistant Attorney General Douglas Goglia; and
(5)April 19, 2011 letter of Attorney Matthew J. Kelly with attached chart.