Opinion
January 29, 1982
Appeal from the Supreme Court, Monroe County, Boehm, J.
Present — Simons, J.P., Callahan, Denman, Moule and Schnepp, JJ. [ 107 Misc.2d 782.]
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: In the underlying action plaintiffs obtained class certification and declaratory and injunctive relief but were denied punitive damages against defendants ( Felder v. Foster, 71 A.D.2d 71, app dsmd 49 N.Y.2d 800). Special Term properly determined that plaintiffs as the prevailing party are entitled to reasonable attorney's fees pursuant to the Civil Rights Attorney's Fees Awards Act (US Code, tit 42, § 1988), and ordered an evidentiary hearing to determine the amount of the award. Relying on the ruling in White v. New Hampshire Dept. of Employment Security ( 629 F.2d 697, cert granted 451 U.S. 982), defendants contend that plaintiffs' application for attorney's fees was not timely. White is easily distinguished from the instant case. There plaintiffs had never requested attorney's fees and a consent decree had been entered which purported to resolve all the issues. Plaintiffs' application for fees four and one-half months after judgment was thus untimely in view of subdivision (e) of section 59 of the Federal Rules of Civil Procedure (US Code, tit 28, Appendix) which provides that such application must be made within a 10-day period. In the case before us plaintiffs' request for attorney's fees was made initially in the pleadings and, more significantly, there has been no final judgment in the case and thus the application would be timely even under Federal jurisdiction (see Anderson v. Morris, 658 F.2d 246; Glass v. Pfeffer, 657 F.2d 252). Defendant county legislators are correct, however, in asserting that insofar as they acted in a legislative capacity, they are immune from liability for attorney's fees in view of the decision in Supreme Ct. of Virginia v. Consumers Union ( 446 U.S. 719). The order is therefore modified to exclude those defendants insofar as they acted in their legislative capacity. Such modification will have little effect on the outcome inasmuch as any award determined to be owing to plaintiffs will ultimately be obtained from Monroe County even though the county is not named as a party (see Hutto v. Finney, 437 U.S. 678, 700). Additionally, we find that Special Term correctly determined that any efforts expended in pursuit of plaintiffs' claims for punitive damages subsequent to March 5, 1979 are noncompensable in view of the decision in Lake Country Estates v. Tahoe Planning Agency ( 440 U.S. 391) which held that punitive damages are unavailable under the circumstances presented here (see Felder v. Foster, supra). Finally, we hold that the guidelines to be followed at the evidentiary hearing are those enunciated in Northcross v. Board of Educ. ( 611 F.2d 624, cert den 447 U.S. 911) and Johnson v Georgia Highway Express ( 488 F.2d 714) as to the reasonableness of the services performed. We have considered defendants' remaining arguments and find them to be lacking in merit.