Opinion
Index No. 158472/2019 Motion Seq. No. 002
08-24-2023
THE NEW YORK TIMES COMPANY Petitioner, v. THE CITY OF NEW YORK OFFICE OF THE MAYOR, Respondent.
Unpublished Opinion
MOTION DATE 08/12/2022.
DECISION + ORDER ON MOTION
HON. TA-TANISHA D. JAMES, JUDGE:
The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55 were read on this motion to/for ATTORNEY - FEES
Petitioner, The New York Times Company ("NYT"), filed this motion for a judgment and order awarding attorney fees and costs in the amount of $66,839.66 ($65,672.30 in fees and $1,167.36 in costs) pursuant to Public Officers Law § 89(4)(c)(ii) of the Freedom of Information Law ("FOIL"). Respondent, The City of New York Office of the Mayor ("the Mayor's Office"), opposes NYT's motion on the grounds NYT's demanded hourly rates and time expended are excessive and thus unreasonable, and requests that the Court award a lesser fee. NYT's application is granted to the extent set forth herein.
BACKGROUND
On August 30, 2019, NYT filed an Article 78 seeking review of a determination of the Mayor's Office pursuant to FOIL. Specifically, NYT sought a copy of a private warning letter sent by the Conflicts of Interest Board ("COIB") to former Mayor Bill de Blasio regarding certain purported fundraising activities relating to the entity Campaign for One New York.
The Mayor's Office denied NYT's request on the grounds the letter was exempt from disclosure under both Section 2603(k) of the City Charter and Public Officers Law § 87(2)(g). NYT subsequently appealed to the Records Appeals Officer at the Mayor's Office, who confirmed the letter was exempt.
In a Decision and Order dated January 15, 2020, the Court (Edmead, J.) granted the Article 78 petition and held that the warning letter was not exempt from disclosure. The Mayor's Office was directed to disclose all outstanding materials sought in NYT's FOIL request within 30 days. The Court further held NYT substantially prevailed and rejected the Mayor's Office's arguments that it had a valid or reasonable basis for denial. Accordingly, the Court granted NYT's application for attorney fees and costs and referred the issue of reasonable fees to a Special Referee to Hear and Determine.
The Mayor's Office appealed to the Appellate Division, First Department, which affirmed the Supreme Court's order. The Mayor's Office subsequently sought leave to appeal to the Court of Appeals, which was denied. On December 7, 2021, the Mayor's Office provided the records demanded by NYT.
The prior Order referring the issue of attorney fees to a Special Referee was stayed pending resolution of the appeals by Order of the Court dated March 11, 2020. Following resolution, the parties consented to extend the time to provide the Information Sheet to the Special Referee to December 27, 2021. On June 15, 2022, Counsel for NYT requested the Court withdraw its referral to the Special Referee and set a briefing schedule due to the backlog in scheduling a hearing before the Referee. By Order dated July 15, 2022, the Court granted NYT's request and directed NYT to move for an award of reasonable attorney's fees within 30 days. NYT filed the instant motion on August 12, 2022, requesting an award of $66,839.66 for attorney fees representing 125 hours and related costs.
The hours log submitted as "Exhibit A" sets forth that attorney David McCraw expended 15 hours at an hourly rate of $689.00 per hour; attorney Dana Green expended 6.1 hours at $556.00 per hour; attorney Al-Amyn Sumar expended 99.9 hours at $503.00 per hour; and attorney Alexandra Settlemayer expended 4 hours at $424.00 per hour (NYSCEF Doc. 42). At the time of the filing of the motion, David McCraw was a senior vice president at The New York Times and the deputy general counsel, practicing law for over 25 years, with nearly 20 years as a media lawyer. Dana Green had approximately 9 years of legal experience, with about five of those years as a media lawyer. Al-Amyn Sumar had 6 years of legal experience, with nearly three years in media law, and Alexandra Settelmayer had approximately three years legal experience with some of that time in media law (NYSCEF Doc. 41).
ARGUMENTS
NYT argues the demanded fees and costs are reasonable based upon the difficulty of the questions presented; the time, effort and skill required in handling this matter; counsel's experience, ability, and reputation; and fees customarily charged. NYT additionally argues 125 hours is not unreasonable given the complexity of the case and the amount of work that was required as a result. This matter was not a routine FOIL proceeding, in as much as it presented a question of first impression. Though the answer was ultimately straightforward, considerable research and analysis was required.
Furthermore, the attempts of the Mayor's Office to appeal the decision granting the Article 78 prolonged the litigation and resulted in NYT submitting five separate briefs in three courts and appearing for oral argument before the Appellate Division. Lastly, NYT contends that the requested fees are consistent with FOIL awards by other courts, and lower than what agencies typically pay prevailing FOIL litigants.
In opposition, The Mayor's Office argues NYT's demanded hourly rates and time expended are excessive and unreasonable. The Mayor's Office acknowledges the question presented was one of first impression, but maintains it was not complex and does not warrant the amount sought by NYT. The Mayor's Office also contends that the case law relied upon by NYT for comparator rates are inapposite and do not support NYT in meeting its burden that its demanded hourly rates are consistent with those in the community, in as much as NYT's counsel is in-house, and thus overhead is covered and should be reflected in their rates. Finally, the Mayor's Office argues that some of NYT's billing is duplicative and should result in a reduction in the hours sought.
ANALYSIS
It is well established that courts have broad discretion in determining an award of attorney fees and costs (Harris Bay Yacht Club v Harris, 230 A.D.2d 931 [3rd Dept 1996]). New York courts often use the lodestar method, which is based on a reasonable hourly rate times a reasonable number of hours expended (Hensley v Eckerhart, 461 U.S. 424 [1983]). Courts also consider twelve factors to determine what is reasonable:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent: (7) time limitations imposed by the client or the circumstances; (8) the amount involved, and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases (id. at 430 n 3, citing Johnson v Georgia Highway Express, Inc., 488 F.2d 714 [5th Cir. 1974; see also Matter of Freeman, 34 N.Y.2d 1 [1974]; Sachs v Adeli, 121 A.D.3d 490 [1st Dept 2014], affirming Special Referee's award of attorney fees).
To determine a reasonable hourly fate, this Court considered the experience, ability, and reputation of each attorney and the fee customarily charged in the local community for similarly situated attorneys engaged in FOIL litigation. Based on the applicable case law regarding attorney fees in FOIL matters, it appears a reasonable hourly rate for David McCraw with approximately 20 years of experience in media law and public records litigation is between $567.00 and $650.00 per hour. The reasonable rate for Dana Green with 9 years' legal experience, four in media law; Al-Amyn Sumar with 6 years' experience, three in media law; and for Alexandra Settlemayer with three years' legal experience and some work in media law, is between $338.00 and $400.00 per hour (Matter of Legal Aid Soc 'y v N.Y.Cnty. Dist Attorney's Off, #160892/2017, 2019 N.Y. Misc. LEXIS 19555 [Sup Ct, N.Y. Cnty. Apr. 11, 2019]; N. Y Times Co. v CIA, 251 F.Supp.3d 710 [S.D.N.Y. 2017]).
In setting its proposed hourly rate, NYT includes an adjustment for inflation, thus increasing the amount per hour sought for each attorney. This Court is disinclined to include such an adjustment, as doing so would raise the hourly rates beyond what this Court has determined is reasonable based upon applicable case law, attorney experience and fees customarily awarded for similar work in the local community. In further support of its proposed hourly rates, NYT also submits settlement agreements in other matters. However, in those agreements, the amount awarded was consented to and not determined by the number of hours expended and the hourly rate of the attorneys involved. NYT argues it is seeking considerably less than the $225,000.00 in attorney fees paid by the City to two news organizations in Rauh v de Blasio, 161 A.D.3d 120 (1st Dept 2018), (NYSCEF Doc. 45). However, in Rauh, the parties stipulated to a lump sum payment and did not specify an hourly rate, providing no support for NYT's claims in this matter which are based upon hourly rates, hours expended, and costs.
In determining a reasonable attorney rate, a judge may also be guided by their own knowledge of the local marketplace and rates for comparable services by attorneys of similar experience (see Metro. Lofts of N K, LLC v Metroeb Realty I, LLC, 2015 N.Y. Misc. LEXIS 589, at *27 [Sup Ct, Kings Cnty. Feb. 27, 2015], rev'd on other grounds, 160 A.D.3d 637 [2nd Dept 2018]; Three60 LLC v Local Ocean Holdings, LLC, 2014 N.Y. Misc. LEXIS 5819, at *10-11 [Sup Ct NY Cnty, Feb. 20,2014]). Taking into account the applicable case law and knowledge of rates for similar work in the community, this Court finds the following to be reasonable hourly rates in this matter: $650.00 for David McCraw, $450.00 for Dana Green $375.00 for Al-Amyn Sumar, and $300.00 for Alexandra Settlemayer.
In determining the reasonable number of hours, this Court considered the novelty or difficulty of the questions and time and labor required to address and litigate them. The underlying document request in this matter, whether a letter from the COIB to the Mayor's Office was exempt from disclosure as a "record of the COIB" under New York City Charter § 2603(k), as well as an "inter-agency" document protected by Public Officers Law § 87(2)(g), was a case of first impression. As such, litigating this matter required research and analysis not normally required in cases with established precedent. Further, the Mayor's Office's attempts to appeal the decision granting the Article 78 required NYT to expend additional hours in responding to the motions for leave to appeal and appearing for oral argument before the appellate court.
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CONCLUSION
Accordingly, after a full and thorough' review of the time records submitted by NYT, the Court finds 13 hours at $650.00 for David McCraw, 4.9 hours at $450.00 for Dana Green, 83.6 hours at $375.00 for AI-Amyn Sumar, and 3.5 hours at $300.00 for Alexandra Settlemayer, for a fee award of $43,055.00, and $1,167.36 in costs, for a total award of $44,222.36, to be fair and reasonable.