Summary
denying plaintiff's request for attorney's fees, where plaintiff had an initial opportunity to establish fees but “did not take advantage of it”; where the Court “permitted [plaintiff] to remedy that failure” but his response was “neither timely nor sufficient”; and where Plaintiff sought “a third bite at the apple ... in a manner directly proscribed by the rules of this Court”
Summary of this case from Arthur Glick Truck Sales, Inc. v. Stuphen E. Corp.Opinion
99 Civ. 2163 (LAK)
October 25, 2000
ORDER
Plaintiff moves, pursuant to S.D.N.Y. Civ.R. 6.3, for reconsideration of the Court's order, dated September 7, 2000, which denied plaintiff's motion for an award of attorney's fees despite the fact that the Court already reconsidered that order sua sponte, although it adhered to the original result in its subsequent order. The Court will reconsider the issue despite the flaws in plaintiff's motion.
Plaintiff argues that reasonable attorney's fees were contemplated by the contract and therefore an element of damages. He is right. But that does not get him where he wants to go.
During the course of the trial, plaintiff offered no evidence of attorney's fees incurred in collecting the note save for a conclusory statement in the written direct testimony of Mr. Schuster that he had incurred attorney's fees and costs in the amount of $264,321.60. The note on which plaintiff sued, however, provided only for recovery of "costs of collection, including reasonable attorneys' fees." (PX 13) Plaintiff offered no evidence of precisely what the $264,321.60 was for, of what portion was attributable to unspecified costs and what to attorney's fees, or of the reasonableness of the charges he sought to collect. Moreover, the Court did not and does not accept Mr. Schuster's conclusory statement as dispositive of any of these issues. As the Court previously has noted,
"Determination of where the truth lies [in this case] . . . is rendered more difficult by the substantial problems with the credibility of both Schuster and Dragone. The two had done business in antique automobiles before, and the record clearly shows that they collaborated in preparing documents that falsely (and, in at least one case, dramatically) understated the prices of automobiles purchased by Schuster from Dragone which Schuster then filed with the Department of Motor Vehicles for the admitted purpose of defrauding state sales tax collection authorities. . . . Nor was the demeanor of either Schuster or Dragone such as to give the Court confidence in the uncorroborated word of either of them." Schuster v. Dragone Classic Motor Cars, Inc., 104 F. Supp.2d 276, 278 (S.D.N.Y. 2000).
Hence, as far as the Court was concerned, the trial record did not and does not permit a finding, based on a preponderance of the evidence, as to the amount or reasonableness of any collection costs incurred by plaintiff. The Court therefore permitted plaintiff to file a motion to fix the amount of attorney's fees although it would have been entirely justified in simply rejecting the claim for attorney's fees for failure of proof.
Plaintiff then moved for an award of attorney's fees pursuant to the Court's opinion. The motion was untimely. It was not accompanied by an affidavit or declaration. There was no showing that all of the services detailed in the time sheets that were submitted were reasonably rendered in the effort to collect the note. Among the concerns in this regard are the fact that plaintiff commenced this action in Connecticut despite a mandatory New York forum selection clause in the note (PX 13, ¶ iv) in an apparent effort to take advantage of favorable Connecticut prejudgment remedies — an advantage to which he was not entitled under the terms of the note. So the Court denied the motion.
Now plaintiff has moved for reconsideration pursuant to S.D.N Y Civ.R. 6.3. In flat defiance of that rule — which explicitly prohibits the filing of affidavits unless directed by the court — he has submitted an affidavit accompanied by evidentiary material relating to the claim for fees and expenses in an effort to remedy the previous failures.
Plaintiff had an opportunity at trial to offer credible and appropriate evidence establishing the amount reasonably expended in pursuing the recovery he obtained in this case. He did not take advantage of it. The Court then permitted him to remedy that failure by a timely and sufficient post-decision motion. His motion was neither timely nor sufficient. Now he seeks a third bite at the apple and does so in a manner directly proscribed by the rules of this Court. But enough is enough.
Plaintiff's motion for reconsideration is granted. On reconsideration, the Court denies the application for attorney's fees and costs in all respects.
SO ORDERED.