Opinion
Index No. 7875/2001
10-05-2023
Susan Hito Shapiro and Benjamin Ostrer, as co-executors of the estate of Milton B. Shapiro, et al., Plaintiffs, v. Deborah Shapiro Kurtzman, et al., Defendants.
Plaintiffs: Joseph J. Haspel, Esq., Joseph J. Haspel PLLC Defendants: Jed Weiss, Esq., Cole, Schotz, Meisel, Forman & Leonard, P.A.
Plaintiffs: Joseph J. Haspel, Esq., Joseph J. Haspel PLLC
Defendants: Jed Weiss, Esq., Cole, Schotz, Meisel, Forman & Leonard, P.A.
HON. PAUL I. MARX, J.S.C.
The Court fervently hopes that this Decision and Order is the last activity in this decades long dispute. The sole remaining issue in this case is the amount of sanctions to be assessed against Plaintiff for initiating and continuing this action, which the Court found constituted frivolous conduct under Court Rule § 130-1.1, and which required Defendant to incur substantial legal and associated fees to defend. Not surprisingly, the parties dispute the amount which is recoverable by Defendant under the law.
The action was instituted by Milton B. Shapiro, who died during its pendency. Shapiro was substituted by his co-executors, Susan Hito Shapiro, his daughter, and Benjamin Ostrer, Esq. Mr. Ostrer died after the case was remitted to this Court by the Appellate Division to resolve the sanctions issue. The parties initially asserted that the action was stayed until a substitute executor was appointed by the Surrogate's Court. This Court determined that Milton Shapiro's Will provided for a single executor to act on his/her/their own in the event of the death or disability of the co-executor. Thus, the Court proceeds to resolve the issue.
Familiarity with this long running dispute is assumed, however, the Court mentions here that Milton B. Shapiro was Defendant Deborah Shapiro Kurtzman's father and business partner in various real estate entities, Custom Builders Corp. ("Custom"), Eagle Valley Corp. ("Eagle Valley"), Pascack Industries ("Pascack"), Rosman Center, LLC ("Rosman") and 303-9W Co., LLC ("303-9W") (collectively, the "Real Estate Entities"). A dispute arose between Shapiro and Kurtzman, which led to Kurtzman commencing an action against the members of 303-9W and Shapiro, seeking to recover her share of the profits of 303-9W. Shapiro asserted as an affirmative defense that Kurtzman was not entitled to the full amount of the distribution she sought, because she owed Shapiro monies which he and his wife Sonya Shapiro, made in the form of capital contributions to the LLC. Shapiro claimed that these advances allowed Kurtzman to have the membership interest in the LLC which she held. Thereafter, Shapiro commenced the instant action against Kurtzman, seeking to recover the amounts he allegedly loaned to their other joint businesses, contending that these infusions of capital enabled her to hold interests in those businesses ("the Loan Case"). Kurtzman then filed a second action against Shapiro in 2002, in connection with Rosman, and a third action against him in 2010 in connection with their other Real Estate Entities. All four actions have concluded, except for the reservation in this action of Kurtzman's right to proceed with her fee application and request for sanctions.
If the reader is not familiar with the underlying saga, this Court's Decision and Order dated August 10, 2021, provides more of the history of the litigation.
The Court held that Kurtzman was entitled to sanctions because nearly ten years after the institution of this action, and after having amended the complaint twice to allege that Kurtzman owed him monies in connection with the claimed loan, Shapiro submitted an affidavit in opposition to a motion to dismiss based on statute of limitations, attesting that the loan had not, in fact, become due.
On August 10, 2021, the Court found that
Shapiro engaged in frivolous conduct by commencing and prosecuting the action sub judice. That conduct was clearly frivolous as defined by 22 NYCRR § 130-1.1, because it was (1) without any reasonable basis in law or fact (in fact, Shapiro defeated the predicate facts for his claim of breach), (2) could not be supported by a good faith argument for an extension, modification, or reversal of existing law and (3) [predicated] on false statements. (Decision and Order at 17-18)
The Court set the matter for a hearing. The parties subsequently agreed that the matter could be decided on updated submissions, and a briefing schedule was set. The Court held oral argument on July 7, 2022.
At oral argument, because there are no reported decisions from New York state courts addressing the specific issue raised in this case - what fees are recoverable where a party is sanctioned for frivolous conduct where some of the fees incurred were also relevant to non frivolous claims - the parties identified two decisions of the United States Supreme Court which offer guidance on the issue, Fox v Vice, 563 U.S. 826, 840-841 [2011], and Goodyear Tire and Rubber Co v Haeger, 581 U.S. 101 [2017]. The Court noted that there was a question as to the extent to which Goodyear modified Fox and which of the two controlled in the case at bar. July 7, 2022, Tr p. 6-7.
Shapiro argues that Kurtzman's entitlement to fees is limited because much of the legal work involved in this action was also applicable to the non-loan cases brought by Kurtzman. Shapiro contends that Kurtzman cannot recoup fees paid on non frivolous matters, or which overlapped with those which were adjudged frivolous. Kurtzman, on the other hand, argued that this is an exceptional case which justifies the Court ignoring that limitation and awarding her all of the fees incurred because all fees incurred flowed from Shapiro's frivolous conduct in asserting that Kurtzman owed him monies. Both parties focused on cases from the United States Supreme Court for support of their respective position. At the conclusion of the oral argument, the Court requested further specification from Kurtzman as to the amount of fees attributable to this case (as distinguished from the non loan cases), as follows:
Mr. Weiss, I would like you to have somebody prepare, or you prepare since you have to certify it, a further submission including only those items that are attributable solely to the loan litigation. That would be consistent with Fox versus Vice. To the extent that you think Goodyear expands that and you want to make an argument for that, you can submit a separate summary of those charges if you'd like, and then I can pick and choose those that I think are appropriate, without hopefully having to go through it line by line. Transcript July 7, 2022 p.9.
The Court continued:
In addition, I would appreciate it if you could calculate for me interest on the amounts that you're claiming at the following dates: One, from inception; two, from the time of the application to Judge Apotheker,... Three, the date of the subsequent application to Justice Walsh ... Id.
The parties submitted further briefing specifically directed to the allocation of the fees. The Court has considered the additional briefing and the parties' prior submissions, and now determines the amount of attorney's fees to award as sanctions against Shapiro for his frivolous conduct.
DISCUSSION
In the absence of New York law on the issue of fee allocation under circumstances such as those present here, the parties have referred the Court to Fox v Vice, 563 U.S. 826, 840-841 [2011], and Goodyear Tire and Rubber Co v Haeger, 581 U.S. 101 [2017].
In Fox v Vice, a decision authored by Justice Elena Kagan, the high court held that only the fees directly related to a frivolous claim can be awarded as a sanction. The plaintiff in Fox initially brought the action in state court, asserting state law claims and federal civil rights claims under 42 USC § 1983, based upon the defendant's alleged interference with Fox's right to seek the office of police chief in Vinton, Louisiana. The defendant moved the case to federal court based on the section 1983 claims, and discovery proceeded in federal court. When defendant moved for summary judgment at the close of discovery, Fox conceded that his federal civil rights claims had no validity. The federal court dismissed the federal civil rights claims with prejudice and remanded the case to state court to decide the remaining state law claims.
Prior to remand in Fox, the defendant moved for an award of fees pursuant to 42 USC § 1988, which allows an award of reasonable attorney's fees to a prevailing party, including a prevailing defendant, "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Fox, 563 U.S. at 833. The trial court determined that the defendant was entitled to all fees incurred by him, because the claims arose out of the same transaction and were inextricably interrelated, and the parties had focused on the federal claims. Fox's state law claims had not been adjudicated; thus, they were deemed to be non-frivolous claims for purposes of the fee award. The Supreme Court framed the issue in terms of "how to allocate fees in a lawsuit having both frivolous and non-frivolous claims, because Section 1988 only allowed recovery of fees that would not have been paid but for the frivolous claims. The high court determined that "if the defendant would have incurred th[e] fees [at issue] anyway, to defend against non -frivolous claims, then a court has no basis for transferring the expense to the plaintiff." Id. at 836 (emphasis in original). Thus, the court held that "[t]he dispositive question is not whether attorney costs at all relate to a non-frivolous claim, but whether the costs would have been incurred in the absence of the frivolous allegation." Id. at 838. The court gave the example of "a defendant's attorney conduct[ing] a deposition on matters relevant to both a frivolous and a non-frivolous claim-and more, that the lawyer would have taken and committed the same time to this deposition even if the case had involved only the non-frivolous allegation." Id. at 836. Such fees would not be recoverable.
Six years later, Justice Kagan again addressed the issue of awardable sanctions in Goodyear, in connection with frivolous conduct concerning a discovery abuse which implicated a federal court's" 'inherent powers'... 'to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" Goodyear, supra at 107. The Haegers sued Goodyear Tire & Rubber Company, claiming that the Goodyear tire on the family's motorhome failed and caused it to swerve and flip over on the highway. The case was marked by several years of often contentious discovery and slow responses by Goodyear to discovery requests, which included its complete failure to provide its internal test results of the type of tire at issue. The case settled, and the attorney representing the Haegers later discovered that Goodyear had turned over its test results in another action involving the same type of tire. The test results revealed that the tire became unusually hot when a vehicle was traveling at speeds between 55 and 65 miles per hour. Goodyear admitted that it withheld the information from the Haegers in the face of their repeated requests for all testing data. As a result, the Haegers moved for sanctions against Goodyear for its discovery abuses, contending that they were entitled to an award of the attorney's fees and costs they had incurred during the underlying action. The trial court determined that Goodyear was repeatedly untruthful in its responses to the Haegers' repeated requests for the test data from early on in the case, thereby entitling them to recover all of the fees and costs they had expended throughout the litigation.
In Goodyear, the Supreme Court reiterated the but-for test established in Fox, which limits an award of fees to those fees which would not have been incurred in the absence of the frivolous allegation, and it applied the same principle to frivolous conduct. The court held that "the Haegers [could not] demonstrate that Goodyear's non-disclosure so permeated the suit as to make that misconduct a but-for cause of every subsequent legal expense...". 581 U.S. at 114. Notably, however, Goodyear expressed the concept that all fees incurred in "exceptional cases", such as where an action was commenced and continued in complete bad faith, could be awarded.
In exceptional cases, the but-for standard even permits a trial court to shift all of a party's fees, from either the start or some midpoint of a suit, in one fell swoop. Chambers v. NASCO offers one illustration. There, we approved such an award because literally everything the defendant did - "his entire course of conduct" throughout, and indeed preceding, the litigation - was "part of a sordid scheme" to defeat a valid claim. 501 U.S., at 51, 57, 111 S.Ct. 2123 (brackets omitted). Thus, the district court could reasonably conclude that all legal expenses in the suit "were caused... solely by [his] fraudulent and brazenly unethical efforts." Id., at 58, 111 S.Ct. 2123. Or to flip the example: If a plaintiff initiates a case in complete bad faith, so that every cost of defense is attributable only to sanctioned behavior, the court may again make a blanket award. [ Goodyear, 581 U.S. at 110].
In Chambers v NASCO, Inc., 501 U.S. 32, 45-46 [1991], which the Supreme Court referenced in Goodyear, the Court held that "a court may assess attorney's fees when a party has" 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'" (citations omitted). As relevant here, the high court upheld the District Court's finding that the plaintiff's conduct was" 'part of [a] sordid scheme of deliberate misuse of the judicial process' designed 'to defeat NASCO's claim by harassment, repeated and endless delay, mountainous expense and waste of financial resources.'" Id. at 56-57. The court found that the trial court need not have "tailor[ed] the sanction to the particular wrong", given the extent to which Chambers' bad faith conduct so permeated the litigation "due to the frequency and severity of Chambers' abuses of the judicial system...". Id. at 56. "[H]is entire course of conduct throughout the lawsuit evidenced bad faith and an attempt to perpetrate a fraud on the court, and the conduct sanctionable under the Rules was intertwined within conduct that only the inherent power could address." Id. at 51. The Supreme Court found that requiring the trial court to parse out different conduct to attribute it to different rules supporting a sanction "[i]n circumstances such as these in which all of a litigant's conduct is deemed sanctionable... would serve only to foster extensive and needless satellite litigation...". Id. at 50-51. Under such circumstances, the court held that "[i]t was within the court's discretion to vindicate itself and compensate NASCO by requiring Chambers to pay for all attorney's fees." Id. at 57.
Here, Plaintiff, a lawyer, initiated this action, characterized by admittedly shifting theories of alleged liability, and continued it for over a decade, simply to defeat his daughter's entitlement to her business profits from companies jointly owned by them. When confronted with a motion to dismiss based on statute of limitations, Shapiro shifted his theory to effectively negate one of the elements of his claim-now asserting that the loan which he alleged was past due, had never come due. Shapiro's conduct fits exactly within the course of conduct in Chambers which was found to warrant a broad award of sanctions. Shapiro's conduct was undeniably in furtherance of a sordid scheme of deliberate misuse of the judicial process, undertaken with the intent to defeat Kurtzman's claim to a share of the profits from the Real Estate Entities. Shapiro knowingly engaged in harassment, dramatically changed the factual predicate underlying this action several times, though the facts were within his personal knowledge, all of which resulted in mountainous expense and a waste of financial and judicial resources. Consequently, there can be no dispute that the action was initiated and continued in bad faith. Plaintiff's course of conduct thus compels the determination that this is an exceptional case warranting an award commensurate with that conduct.
In this Decision and Order, therefore, the Court intends to make an award to Defendant to rectify the result of Plaintiff's conduct. To do otherwise would negate the intention of Rule § 130-1.1 and the Court's inherent authority to redress wrongful and pervasive litigation conduct.
The Parties' Arguments
Relying on Goodyear, Defendant argues that the instant matter is an exceptional case where all legal fees can be assessed against Plaintiff, notwithstanding that the legal services rendered also had applicability in the related joined actions. She contends that all four of the actions involved Milton Shapiro's fatally flawed attempt to collect monies allegedly owed by Kurtzman to him, either directly in this action, or indirectly via affirmative defenses seeking a setoff in the other three actions. Thus, she argues, the Court can, and should, include all fees incurred by her.
Plaintiff contends that applying the "exceptional case" rule to the instant matter to allow the fees incurred in all four actions would be errant because this action is the only one in which there was a reservation of rights with respect to counsel fees; the other three cases having resolved or settled without any such reservation. Plaintiff contends that where fees incurred in frivolous actions for legal work overlaps with non-frivolous actions, the fees from non-frivolous actions cannot be awarded. Finally, Plaintiff submits that the Notice of Motion which supported the instant application was entitled "Deborah G. Kurtzman's Notice of Motion for an Award of Attorneys' Fees in Index No. 7875/2001", thus limiting the fees to which Defendant is entitled.
At the July 7, 2022, conference, the Court stated that the sanctions award will be in the instant matter only. Consequently, the Court will not award any fees incurred by Defendant in prosecuting her claims in the other three actions. However, the Court also declines to disqualify the work which overlaps predicated on the same loans at issue in this case. To be sure, it would be patently unfair for Shapiro to avoid the consequences of his meritless conduct simply because he asserted the same baseless claims in the other cases.
Shapiro's counsel has doggedly maintained that the issues before the Court arise solely from the instant case, yet he now seeks to consider the other cases to defeat a substantial portion of the fee award in this case. The Court rejects his claim that Kurtzman cannot collect any fees incurred to defend against Shapiro's affirmative defenses in the other cases because they were useful and valid defenses. The Court declines to entertain Shapiro's request to adjudicate the merits of his loan claims asserted as affirmative defenses and render an advisory opinion he believes will assist him in defeating Kurtzman's fee award. Simply put, Shapiro cannot have it both ways, simultaneously asserting that Kurtzman cannot seek to recoup the fees expended in the other cases and asserting that some of the legal work done in those cases is duplicative of the work in this case, and therefore not recoverable.
There appear to be no New York cases which address the instance of a sanctions award for one of several joined cases where the conduct in only one of the cases was held to be frivolous. The Court reiterates that the sanctions award will be in the instant matter only. However, the Court's award includes fees that may have overlapped with the other actions because only Plaintiff's conduct in this case may be considered. Therefore, the Court will not reach into the other settled actions to determine whether Plaintiff's assertion of the alleged loans made to Defendant as affirmative defenses in the other actions was not frivolous conduct as Defendant suggests. Moreover, because this is an exceptional case in the vein contemplated by Goodyear, the Court is relieved of "the grind of segregating individual expense items... because all fees in the litigation... meet the applicable test: They would not have been incurred except for the misconduct." 581 U.S. at 111.
In Posner v S Paul Posner 1976 Irrevocable Family Trust, 12 A.D.3d 177 [1st Dept 2004], an action brought under the Debtor Creditor Law, the appellate court indicated its tacit approval of an award of fees which were "inextricably intertwined" with other issues. Here, some of the fees incurred in the defense of this action were "inextricably intertwined" with issues in the joined cases, but in all cases, the legal work was directed at rejecting Plaintiff's bogus claim that Defendant owed him money pursuant to an overdue note. Simply stated, the fact that the legal services may have also been useful in opposing the same frivolous conduct in other actions does not render them non-compensable in this case.
Court Rule § 130-1.1(a) provides full justification for the Court's determination. It provides, in pertinent part:
The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart. (Emphasis by italics added).
The Court takes especial notice of the fact that this rule imbues the trial court with the discretion to make an award for fees which have "result[ed] from frivolous conduct" - bringing an action on a loan which had not yet come due. In this case, every fee incurred by Defendant in this action flowed directly from Plaintiff's pursuit of this baseless suit. As such, all fees incurred to defend against this suit "resulted" from the frivolous conduct and are recoverable, if reasonable.
Other Issues Presented
Relying on the plain language of Rule § 130-1.1, Defendant contends that she is entitled to the fees incurred by her, interest on the fees, and counsel fees for securing the fees associated with the action because the action has been determined to be frivolous. Plaintiff raises various roadblocks to the sanctions award, arguing that the rate charged by Kurtzman's lawyers is excessive for the locality, that Kurtzman's lawyers used block billing, that some charges were overbilled, that any claim for fees associated with appeals is barred because only the appellate court can order fees related to appeals, and that the law prohibits an award of fees incurred to prove the fees incurred by virtue of the frivolous conduct, so called "fees on fees".
Plaintiff variously asserts that: (1) Defendant is only entitled to a "reasonable amount' without specification as to what that amount might be, (2) Defendant is not entitled to interest on the monies spent because there was no demand for payment of the fees incurred, (3) the Court's prior decision which reinstated the action after it had been dismissed for Plaintiff's discovery failures conditioned on payment of $10,000 in sanctions bars any further award of fees for that portion of the case, and (4) the fees sought are excessive.
Thus, in addition to disagreeing about the amount of fees which Plaintiff is to be directed to pay to Defendant, the parties disagree about whether Defendant is entitled to the fees she incurred in securing the sanctions award, fees associated with the various appeals and interest. These issues will be addressed separately below, with prevailing case law in mind.
In Fox v Vice, supra, the Supreme Court emphasized that the determination of fees "should not result in a second major litigation."
Given the advanced age of this litigation, and the extensive efforts that Kurtzman has gone to in order to recover her fees and the equally extensive efforts to which Shapiro has gone to deprive her of those fees, it appears that the Fox Court was prescient.
The fee applicant (whether a plaintiff or a defendant) must, of course, submit appropriate documentation to meet "the burden of establishing entitlement to an award." But trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time. And appellate courts must give substantial deference to these determinations, in light of "the district court's superior understanding of the litigation." We can hardly think of a sphere of judicial decision making in which appellate micromanagement has less to recommend it. 563 U.S. at 838 (internal citations omitted).
Against this backdrop and recognizing that Defendant's request for sanctions has spanned an entire decade, including two separate appeals of Supreme Court trial decisions concerning the issue of frivolity, the Court addresses the request.
An appeal followed the decisions of Judge Charles Apotheker dated February 21, 2012, and February 11, 2014, which determined Plaintiff's action to be frivolous and granted sanctions to Defendant in the amount of $626,566.37 after a lengthy hearing. The Appellate Division reversed both decisions and vacated the award of counsel fees primarily because the request for sanctions came in Defendant's reply papers. See Shapiro v Kurtzman, 149 A.D.3d 1117 [2nd Dept 2017]. An appeal also followed the decision of Justice Thomas E. Walsh II, dated February 14, 2019, which denied Defendant's motion seeking a determination that the action was frivolous. The Appellate Division reversed Justice Walsh and remitted the matter to Rockland County Supreme Court for determination of the motion. See Shapiro v Kurtzman, 189 A.D.3d 901 [2nd Dept 2020].
The Amount of Fees To Be Awarded
Defendant has submitted outlines and spreadsheets of the fees incurred by her, along with copies of the more recent fee statements. The spreadsheets lay out various options for the Court to consider - along with interest calculations. By contrast, Plaintiff provides no guidance to the Court as to a specific amount which she submits is fair - stating instead that she is willing to pay a reasonable amount. She leaves it to the Court to determine which entries on Defendant's counsel's fee statements should be rejected. She provides color coded annotations appended to the entries on Defendant's counsel's fee statements and asks the Court to, essentially, perform a line-by-line analysis of those entries. In doing so, Plaintiff seeks to turn the Court into the green eye shaded accountant which the highest court specifically eschewed. Indeed, each argument advanced by Plaintiff in opposition to a substantial fee award requires the Court to evaluate, on a line-by-line basis, Defendant's counsel's fee statements. The Court declines this invitation.
The Reasonableness of Defendant's Counsel's Rates
Any analysis of counsel fees begins with an examination of the reasonableness of the rate charged by counsel. Factors to be considered in such cases include the prevailing rate in the community, the difficulty or complexity of the litigation, the experience and qualifications of counsel and the tactics of the adversary.
In general, factors to be considered include "(1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved." Moreover, the determination must be based upon a demonstration of the hours reasonably expended on the litigation and what is reasonable compensation for the attorney based upon the prevailing rate for similar work in the community (The determination of a reasonable attorney's fee is left to the sound discretion of the trial court RMP Cap. Corp. v. Victory Jet, LLC, 139 A.D.3d 836, 839-40 [2nd Dept 2016] (internal citations omitted).
Plaintiff asserts that the rates charged by Defendant's counsel were excessive, arguing that the rate charged "exceeded the rate charged by the most expensive practitioners in Rockland County at that time." Plaintiff contends that the evidence at the hearing held before Judge Apotheker demonstrated that the hourly rate charged by Defendant's attorneys exceeds that which is usual and customary for Rockland County. In support of that assertion, Plaintiff contends that retired Appellate Division Associate Justice Howard Miller testified at the hearing held before Judge Apotheker that he was not aware of any firms in Rockland County which were billing at rates equal to or higher than that billed by Kurtzman's lead attorney, David Kohane, Esq., who was billing at a rate of $550 per hour in 2013 and $450 per hour in 2008. Rather, Shapiro argues, based on the testimony of Richard Sarajian, Esq., an attorney and managing partner of a well-known Rockland County firm, that $365 per hour was the prevailing rate for complex litigation in Rockland County.
Defendant responds that Plaintiff has misrepresented Judge Miller's testimony and that the rates charged by her counsel are reasonable for the complexity of the litigation. Defendant notes that Judge Miller testified about a number of firms in the area who charged the same or more than her counsel during the relevant period. Defendant quotes Judge Miller's testimony (on examination by Shapiro's counsel) as follows:
Judge Miller testified that several firms charged $500 per hour at the time. [Jacobowitz & Gubits (R1760), Don Tracy (R1777), John Edwards (R1777), Bruce Rogers (R1781), Robert Fenster (R1782), Harvey Barr (R1782), and DelBello Weingarten ($550 per hour) (R1783)].
Q - Is there a range that you ascribe to attorneys in Rockland County who handle complex litigation?
A - A range I would say of about 375 to 450 would be the range of my inquiry. (R1777).
The Court has examined the hourly rates charged by Defendant's counsel in light of all of the other factors surrounding this case, including counsel's experience, training, expertise, and reputation, as well as the time and labor required to address the various and sundry issues created by Plaintiff's frivolous conduct. Notwithstanding the arguments asserted by Shapiro, the Court concludes that the rates charged were not unreasonable and were in fact, commensurate with the complexity and prolixity of the litigation.
It must be recalled that Plaintiff was a well-known lawyer in Rockland County. It is completely understandable that Defendant sought counsel from outside of Rockland County. That counsel's rate may have varied from what Plaintiff's counsel believes was/is reasonable is not persuasive. To be sure, Defendant's counsel's dedication throughout this litigation is to be commended. Counsel have diligently and professionally navigated this litigation for many years. Thus, as a matter of discretion, the Court will not adjust the hourly rates sought by Kurtzman's counsel.
Fees for Appeal of Apotheker Order
Plaintiff rejects Defendant's request for counsel fees associated with the appeal from Judge Apotheker's decision which held Plaintiff to have engaged in frivolous conduct and subsequently awarded counsel fees to Defendant, asserting that only the appellate court can award fees associated with an appeal. Plaintiff cites the trial court's decision in Galasso Langione & Botter, LLP v Liotti, 22 Misc.3d 450 [Sup Ct, Nassau County 2008].
Defendant submits that this Court has the authority to make such an award. In support of Defendant's contention, she cites to Cinque v Schieferstein, 5 A.D.3d 198 [1st Dept 2004] in which the appellate division affirmed an award of counsel fees by the trial court for responding to a prior appeal.
Contrary to Plaintiff's arguments, it is the trial court which enjoys the authority to assess fees associated with appeals if those appeals emanate from conduct adjudged to be frivolous by the trial court. Aborn v Aborn, 196 A.D.2d 561 [2nd Dept 1993] abrogated on other grounds by McSparron v McSparron, 87 N.Y.2d 275 [1995]. When considering a party's request for an award of fees associated with an appeal the Appellate Division in Aborn supra, held
Finally, the wife's request for counsel fees incurred in connection with the defense of this appeal is not properly before this Court. The application for an award of appellate counsel fees should be decided at the trial level, as the Appellate Division is not the appropriate forum for such a request. Aborn, 196 A.D.2d at 564 (citing Taft v Taft, 135 A.D.2d 809; Gutman v Gutman, 24 A.D.2d 758).
Of course, this rule is not applicable to situations where the appellate court determines that the appeal itself is frivolous. In those cases, not present here, it is the appellate court which can sanction counsel for frivolous acts. Thus, the distinction is that the appellate court is vested with the authority to award counsel fees for frivolous conduct on the appellate level, while the trial court is vested with the authority to assess sanctions for such conduct which originates at the trial level, even if it includes fees for appeals.
"Under part 130 of the Rules, frivolous appellate litigation may be found to exist where the appellate arguments raised are completely without merit in law or fact, where the appeal is undertaken primarily to delay or prolong the litigation or to harass or maliciously injure another, or where the party or attorney asserts material factual statements that are false (22 NYCRR 130-1.1 [c]; see Matter of Wecker v D'Ambrosio, 6 A.D.3d 452 [2004]; Levy v Carol Mgt. Corp., 260 A.D.2d 27 [1999])." Yenom Corp. v 155 Wooster St., Inc., 33 A.D.3d 67, 70 [1st Dept 2006].
To the extent that Plaintiff cites to the Galasso trial court decision for the contrary proposition, this court rejects that attempt. Galasso merely held that expenses sought must be related to the frivolous conduct to be properly before the court, and if they were related to other aspects of the action, they were not. In Galasso, the Court stated:
[t]hus, fees and expenses incurred in connection with work which culminated in the second decision are not recoverable because they were incurred in connection with other aspects of this litigation. Similarly, fees and expenses in connection with Liotti's appeal and his application for a stay were not incurred in pursuit of the dismissal of the third-party action. Galasso Langione & Botter, LLP v Liotti, 22 Misc.3d at 452 aff'd, 81 A.D.3d 880 [2nd Dept 2011].
The cited paragraph in the trial court decision in Galasso concludes: "In any event, if related to an appeal, such fees and expenses fall within the purview of the Appellate Division." This statement is completely unsupported and is dicta which this court will not follow. Indeed, this statement by the Galasso court appears to ignore the higher court's holding to the contrary in Aborn.
Plaintiff also relies on Condo v Condo, 68 Misc.3d 574 [Sup Ct. NY Cty 2020]. Again, this reliance is misplaced. Condo involved a request made to the trial court for fees associated with alleged frivolous appeals. There, the court properly held that fees associated with frivolous appeals are the province of the appellate court.
Here, the appeal of Judge Apotheker's Decision and Order was necessitated by Plaintiff's initiation and continuation of his frivolous claims, i.e. it emanated from Shapiro's frivolous conduct, notwithstanding that Kurtzman's counsel failed to follow proper procedure by seeking relief in her reply papers. So, too, was the appeal of Judge Walsh's errant Decision and Order which denied Defendant's motion for an adjudication of frivolity. But for Plaintiff's commencement and continuation of this matter, the hearing before Judge Apotheker and the subsequent appeals would not have been necessary. Thus, the fees incurred by Defendant for the appeal of Judge Apotheker's Decision and Order are recoverable. As such, the Court has allowed the claim for fees for that work.
The Court recognizes that at the July 7, 2022, appearance the Court indicated a disinclination to award these monies. Tr p. 7. However, upon further consideration, the Court finds an award of the fees for the Apotheker appeal to be warranted.
Fees on Fees
Plaintiff complains that Defendant is seeking to recover "fees on fees" by asking the court to award the fees incurred by her in connection with the sanctions application(s) and award. Defendant argues that such fees are appropriate under the circumstances to make her whole. Plaintiff asserts that Defendant should be deprived of the fees incurred in demonstrating Plaintiff's frivolity and in seeking to recoup the damages incurred as a result of that frivolous conduct.
This Court disagrees with Plaintiff. If Defendant is not awarded the fees incurred in demonstrating the frivolity of Shapiro's conduct and in defending against the claims, Defendant will unjustly bear the expense of Plaintiff's initiation and continuation of this meritless action. Moreover, the law is clear that a party is entitled to recover the expenses associated with proving the value and reasonableness of their fees when challenged by the opposing party. To hold otherwise would permit the erosion of that to which defendant is rightfully entitled.
In Posner v S. Posner 1976 Irrevocable Family Trust, supra, the Appellate Division, First Department, held that it was proper for a sanctioning court to include not only the fees incurred which were directly related to the sanctionable conduct, but also the associated with proving the value of the services.
Nor was it error to include in the award the fees incurred by the Estate in proving the value of its attorneys' services, i.e., a fee on a fee (cf. Senfeld v I.S.T.A. Holding Co., 235 A.D.2d 345, 345-346 [1997], lv denied 92 N.Y.2d 818 [1998]; Kumble v Windsor Plaza Co., 161 A.D.2d 259, 261 [1990], lv denied 76 N.Y.2d 709 [1990]). In the latter regard, we reject plaintiff's argument that Baker v Health Mgt. Sys. (98 N.Y.2d 80 [2002]), which interpreted a statute narrower than Debtor and Creditor Law § 276-a, created a per se rule against fees on fees. Posner v S. Paul Posner 1976 Irrevocable Fam. Tr., 12 A.D.3d at 179.
While Plaintiff characterizes Kurtzman's request to be reimbursed for the fees incurred in proving the amount of the fees paid to defend the action, as "fees on fees", and, therefore, not recoverable, these fees are recoverable as necessary to prove her damages - including the value of the services rendered by her attorneys. Notably, in Galasso, cited by Plaintiff, the appellate division affirmed the trial court's award of counsel fees, including the fees incurred with preparation for and attendance at calendar calls and a hearing to determine the amount and reasonableness of the fees sought. Since the parties have stipulated that this Court may rely on they record adduced before Judge Apotheker, this court can award the fees associated with the hearing to establish the fees.
Interest
CPLR § 5001 provides for interest to be awarded in certain cases, as follows:
(a) Actions in which recoverable. Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion.
(b) Date from which computed. 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.
(c) Specifying date; computing interest. The date from which interest is to be computed shall be specified in the verdict, report or decision. If a jury is discharged without specifying the date, the court upon motion shall fix the date, except that where the date is certain and not in dispute, the date may be fixed by the clerk of the court upon affidavit. The amount of interest shall be computed by the clerk of the court, to the date the verdict was rendered or the report or decision was made, and included in the total sum awarded.
The parties disagree over whether Defendant is entitled to interest on this Court's award. Plaintiff opposes any award for interest. Plaintiff submits that "Shapiro was never asked to pay fees. It cannot be in breach for failure to pay fees until such time as the fees are approved by the Court.... Shapiro is not declining to pay any justly due amount, once that is determined." Shapiro Opposition p.21. Shapiro also argues that an award of sanctions is not subject to interest because it is not "breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property".
Defendant asserts that without interest on the monies expended by her, she will suffer unwarranted harm because she has lost the opportunity to use the monies expended on this litigation for other purposes unrelated to her father's frivolous conduct.
Shapiro's argument that she was never asked to pay fees, and, therefore, interest does not attach is misplaced and simply incorrect. Kurtzman has applied to several courts to have Shapiro's actions determined to be frivolous and to be reimbursed for the costs of defense.
Shapiro fails to appreciate that the language of Court Rule § 130-1.1 provides for an award of all fees resulting from the frivolous conduct, in the discretion of the trial court. Here, given that Plaintiff's conduct in filing and continuing the entire action has been determined to be frivolous, this Court construes that language to include Defendant's efforts to be made whole by including interest. It is readily apparent that if Defendant is denied interest on the sanctions award made hereunder, that she will have lost the opportunity to use her monies for other purposes. This is generally referred to as "opportunity cost". By being compelled to pay her counsel to defend a frivolous action which Plaintiff should have not brought in the first instance, Defendant could not allocate the monies she expended to other purposes. Simply stated, unless interest is awarded, Defendant would not be in the same position she would have been if Plaintiff had not engaged in frivolous conduct by filing and pursuing this action for more than ten years. Defendant should suffer no loss because of Plaintiff's misguided conduct and unsupported claims.
CPLR § 5001(b) permits the Court to select an operative date from which interest will run. As noted above, the Court requested Kurtzman's counsel to specify the amount of interest from various dates, inception of the action, the date Shapiro's affidavit revealed his frivolous conduct and the date of the application to Justice Walsh. The Court, in the exercise of discretion, holds that interest on the sanctions award shall run from the date on which Shapiro submitted his affidavit in opposition to Kurtzman's motion for summary judgment based on the statute of limitations (October 14, 2011). This date provides the most identifiable time when Shapiro's frivolous conduct became known to the Court and the parties. Awarding interest from inception of the action would grant Kurtzman interest in advance of having incurred her legal expenses. Awarding interest from the date of the application to Justice Walsh would ignore the reality of when Shapiro's conduct became evident.
The Prior Fee Award to Kurtzman
As Shapiro admits in its papers, "during the course of [this case], Kurtzman moved for sanctions, including dismissal of the case, for discovery violations", failing to respond to a demand for interrogatories and other discovery devices. Shapiro Opposition, March 1, 2022, p 18. In a Decision and Order dated July 12, 2004, the Hon. William E. Sherwood (JSC, ret.) granted dismissal. Justice Sherwood subsequently vacated the dismissal order upon a showing that Shapiro's counsel was incompetent due to Alzheimer's Disease, conditioned on Shapiro's payment of $10,000 to Kurtzman as a sanction pursuant to CPLR § 3126. The reinstatement order was affirmed by the Appellate Division in Shapiro v Kurtzman, 50 A.D.3d 771 [2nd Dept 2008].
Shapiro now argues that "although unclear from the vacatur order, such award of fees was for the purpose of making the non-moving party whole for her fees incurred as a result of the litigation" Id. Thus, she asserts, "any of the time attributable to the discovery/sanction motion, the motion to vacate the order of dismissal and the appeal therefrom is not compensable since a sanction was already established and paid." She continues, "[I]f the award was not compensatory, it would have been classified as a sanction and paid to the Lawyer's Fund for Client Protection." Id. p. 19.
Shapiro submits that Seaman v Wyckoff Heights Medical Center, 51 A.D.3d 1002 [2nd Dept 2008] prohibits this court from assessing further sanctions in connection with the dismissal and reinstatement of the action and the related appeal because the affirmance of Justice Sherwood's vacatur order is law of the case. She argues that "[t]his Court may not revise, supplement, or amend the Appellate Division's Order by imposing further or duplicative, sanctions for that same conduct merely upon a finding that sanctions could have been awarded for other reasons. Thus, to the extent there is now a request for fees for the litigation surrounding the vacatur of the dismissal order, such request is clearly out of bounds."
Shapiro's argument that the $10,000 paid to Kurtzman constituted full restitution is misplaced. Those monies were paid to Kurtzman to rectify a discovery issue created by Shapiro's counsel's disability. Those monies were not paid because of the frivolity of the conduct, but rather as partial compensation for fees incurred as a result of Shapiro's discovery failures.
However, the Court recognizes that Shapiro previously paid Kurtzman $10,000 in counsel fees as a condition of vacating the dismissal of the action. The Court also recognizes that the $10,000 sanction was attributable to discovery failures and was not predicated on the frivolity of the entire action. Thus, any sanction that this Court authorizes with respect to the dismissal order, or any legal work associated with the appeal that ensued is reflective of the additional unnecessary work performed based on the underlying case lacking merit. To ensure that there is not a duplication of sanctions however, to the extent that Kurtzman's award herein includes fees for the dismissal motion, vacatur and appeal, Shapiro is entitled to a $10,000 credit.
This is the only reasonable method for dealing with the prior discovery sanction award, lest the Court be placed in the position of having to review, like the green eye shaded accountant, all of Kurtzman's legal bills.
Fees Awarded
Defendant submits that she is entitled to $921,345.99 for fees arising solely from the instant litigation on the trial level, and $96,881.17 for the Apotheker Appeal. To these amounts, Defendant calculates interest through February 10, 2023, as requested by the Court (1) from inception of the litigation in amounts of $812,694.61 and $69,695.29 (totaling $1,900,617.06), (2) from October 14, 2011, the date Shapiro's frivolous conduct was finally exposed, in the amount of $695,321.34 and $69,695.29, (totaling $1,783,243.79), and (3) from the date the application for fees was submitted to Justice Walsh, January 12, 2018, in the amounts of $362,704.20 and $44,313.18, (totaling $1,425,244.54), respectively.
Plaintiff has voiced exception to a number of specific items claimed as excessive. In order to avoid becoming the green eye shaded accountant which the United States Supreme Court specifically cautioned courts against, the Court focuses on the specific objections raised by Plaintiff. The Court will evaluate the items specifically objected to in Plaintiff's brief without engaging in a line-by-line analysis of Defendant's fee statements.
In her "Opposition to Fee Application" dated March 1, 2022, Shapiro specifically challenges the fees sought by Kurtzman for the following:
(1) $14,007.75 for the argument of the appeal of the order which vacated the dismissal of the action. Shapiro asserts that the fees related to the appellate argument are not compensable because "it is well known that oral arguments before the Second Department, if held, are limited to five to ten minutes." Shapiro Opposition at 23. Shapiro complains that much of the time claimed for the oral argument is attributable to the fact that an attorney other than the one who did most of the appellate briefing argued it. Shapiro further asserts that the issue on this appeal was a simple one - whether Justice Sherwood erred in vacating his prior order dismissing Shapiro's action for discovery abuses when it was learned that his attorney was mentally unfit. Shapiro claims, therefore, that this duplicative effort should not be awarded, particularly because Shapiro prevailed in the appeal.
The Court disagrees. First, the suggestion that the length of oral argument before the Second Department should have any bearing on whether the fees are reasonable is ludicrous on its face. Counsel arguing an appeal must be familiar with all aspects of the case being argued and all precedent cited by both sides to be prepared for oral argument. Counsel cannot predict what issue or question of law the appellate panel may raise or where a question from the appellate panel may lead. But for Shapiro's institution and continuation of the frivolous action, none of these expenses would have been incurred. It is not unusual for a lawyer different than the one who wrote the briefs to argue an appeal. Shapiro does not get to dictate to Kurtzman or her lawyers which lawyer performs what tasks under the umbrella assassination of duplication of efforts. Nor is the fact that Shapiro prevailed on the appeal, resulting in the reinstatement of the action, a disqualifying factor. At bottom, all of the work involved sprang from Shapiro's baseless, deliberate and unrelenting efforts to defeat Kurtzman's claims.
(2) $63,030.00 for a motion for summary judgment which "led to a cross motion to preclude". Shapiro notes that both the motion and cross motion were denied. Shapiro also challenges the charges for the second motion for summary judgment which resulted in the revelation of Shapiro's frivolous conduct, for which Kurtzman was charged $37,200. Shapiro argues that charges in excess of $100,000 for two motions for summary judgment are "unreasonable, if not absurd".
Shapiro dissects the time records submitted to assail the fees sought. First, Shapiro argues that the first motion for summary judgment was denied as premature. Next, Shapiro notes that "while the interrelated overlapping issues concerning father and daughter's business relationships may have been complex, the issues that Kurtzman presented through its motions for summary judgment were not." Id. at 24. Shapiro continues, "it is respectfully submitted that while there may have been some nuances in statutes of limitations analysis, the basic analysis is simple. One must determine the accrual date of the loan and count six years." Ironically, Shapiro then argues that Plaintiff "first pleaded the note as a demand note due upon extension of credit. Later, Shapiro's position morphed to time notes (due upon a condition subsequent which occurred), and finally it morphed to a time note (due upon a condition subsequent which did not yet occur, and not due at the time of the commencement of the Loan case.") Id.
Shapiro's description of the simplicity of the case is undermined by her own admission of its metamorphosis. Far from being a simple matter, Shapiro's changing theories rendered the matter a complex one, where Kurtzman needed to address the shifting sands beneath Shapiro's claims. The Court respectfully declines Shapiro's invitation to delve into a line-by-line analysis of the fees associated with the summary judgment motions. Having embarked on this frivolous course of conduct over the span of more than a decade, Shapiro shall bear the cost incurred by Kurtzman to respond.
(3) Shapiro contends that the balance of the fees incurred "involved discovery, attendance at regularly scheduled status conferences, and strategy meetings". Id. at 22. Shapiro asserts that this time overlapped with one or more of the cases, rendering the time not compensable. The Court has already addressed the overlap of legal services and will not do so further here.
The Court has evaluated the fee statements and analyses submitted by both parties and concludes that an award of $1,018,227.16 is appropriate. This is the amount that the Court finds to have been reasonably incurred by Kurtzman to defend against Plaintiff's frivolous conduct and ensuing damages. This amount consists of the litigation expenses incurred of $921,345.99 plus the appellate expenses associated with the Apotheker appeal, $96,881.17. Interest shall be assessed as set forth above.
Summary
It is hereby:
ORDERED that Defendant Deborah Shapiro Kurtzman shall have Judgment against Plaintiff, Susan Hito Shapiro as Executor of the Estate of Milton B. Shapiro, in the sum of $1,008,227.16 as and for fees incurred as a result of Plaintiff's frivolous conduct in initiating and continuing this action, and it is further
$921,345.99 + $96,881.17-$10,000=$1,008,227.16
ORDERED that said amount shall bear interest at the statutory rate of 9% per annum from October 14, 2011, to be calculated by the Clerk of the Court together with costs and disbursements as provided by law.