Opinion
1186 CA 18–01588
02-07-2020
Dawn STEFANIAK, Plaintiff, v. NFN ZULKHARNAIN, Defendant–Appellant. Roberta L. Reedy, as Administrator of the Estate of Kevin M. Reedy, Deceased, Respondent.
MICHAEL A. ROSENHOUSE, ROCHESTER, FOR DEFENDANT–APPELLANT. MATTINGLY CAVAGNARO, LLP, BUFFALO (CHRISTOPHER S. MATTINGLY OF COUNSEL), FOR RESPONDENT.
MICHAEL A. ROSENHOUSE, ROCHESTER, FOR DEFENDANT–APPELLANT.
MATTINGLY CAVAGNARO, LLP, BUFFALO (CHRISTOPHER S. MATTINGLY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order and judgment so appealed from is unanimously modified in the exercise of discretion and on the law by striking from the first decretal paragraph the figure of 708.0 and replacing it with the figure 475.0, and by striking from the first and second decretal paragraphs the amount of $70,890.00 and replacing it with the amount of $47,500.00, and as modified the order and judgment is affirmed without costs.
Memorandum: In this action for divorce and ancillary relief, defendant appeals from an order and judgment that awarded $70,890.00 to Roberta L. Reedy, as administrator of the estate of Kevin M. Reedy (respondent) for Reedy's work as the Attorney for the Children (AFC). On a prior appeal, this Court concluded that Reedy should have been appointed as the AFC pursuant to 22 NYCRR part 36 nunc pro tunc and that defendant must pay Reedy's fees. We thus remitted the matter to Supreme Court to "determine the amount" of Reedy's fees following a hearing, if necessary ( Stefaniak v. NFN Zulkharnain, 119 A.D.3d 1418, 1419, 991 N.Y.S.2d 188 [4th Dept. 2014] ). Upon remittal, the court concluded that this Court's order limited the remittal to a determination of the hourly rate to be used to calculate the amount of attorney's fees and that "the number of hours performed by Mr. Reedy cannot be questioned at this stage." The court then determined that the rate to be used was $100.00 per hour, applied that rate to the 708.90 hours that Reedy had previously claimed, and entered judgment accordingly. We agree with defendant that the court erred in concluding that our prior order precluded defendant from challenging the number of hours for which Reedy sought compensation.
Our prior order unequivocally directed the court to calculate the amount of Reedy's fees. An award of attorney's fees must be "calculated on the basis of the ... hours actually and reasonably spent on the matter by ... counsel, multiplied by counsel's reasonable hourly rate" ( Hayes v. Ontario Plastics, 6 A.D.3d 1122, 1122, 775 N.Y.S.2d 682 [4th Dept. 2004] ; see generally Matter of Freeman, 34 N.Y.2d 1, 9, 355 N.Y.S.2d 336, 311 N.E.2d 480 [1974] ). In assessing the reasonableness of the hours spent by counsel, the issue "is not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in the same time expenditures" ( Grant v. Martinez, 973 F.2d 96, 99 [2d Cir.1992] ). Thus, upon remittal the court was required, inter alia, to determine an award of attorney's fees that adequately reflected both the time spent and whether such time "was reasonably related to the issues litigated" ( Brod v. Brod, 48 A.D.3d 499, 500, 852 N.Y.S.2d 272 [2d Dept. 2008] ; see e.g. Avildsen v. Prystay, 239 A.D.2d 131, 132, 657 N.Y.S.2d 611 [1st Dept. 1997] ; Bauin v. Feinberg, 6 Misc.3d 1038[A], 2005 N.Y. Slip Op. 50343[U], 2005 WL 636700, *10 [Civil Ct., N.Y. County 2005] ). Here, especially in light of Reedy's prior concession that the amount sought was excessive, we conclude that the court abused its discretion in fixing the amount of fees without determining the reasonableness of the number of hours included in Reedy's fee request (see generally Owens v. Tompkins Bank of Castile, 170 A.D.3d 1683, 1685, 96 N.Y.S.3d 788 [4th Dept. 2019] ; 542 E. 14th St. LLC v. Lee, 66 A.D.3d 18, 24–25, 883 N.Y.S.2d 188 [1st Dept. 2009] ).
Contrary to respondent's contention, the court's statement in its earlier decision that "[n]o one has questioned the number of hours [Reedy] has claimed" did not become law of the case. The doctrine of law of the case "applies only to legal determinations that were necessarily resolved on the merits in a prior decision" ( Brownrigg v. New York City Hous. Auth., 29 A.D.3d 721, 722, 815 N.Y.S.2d 681 [2d Dept. 2006] ; see Town of Angelica v. Smith, 89 A.D.3d 1547, 1550, 933 N.Y.S.2d 480 [4th Dept. 2011] ). Consequently, the doctrine does not apply where, as here, the court makes statements that are "mere dicta" ( Donahue v. Nassau County Healthcare Corp., 15 A.D.3d 332, 333, 789 N.Y.S.2d 519 [2d Dept. 2005], lv denied 5 N.Y.3d 702, 799 N.Y.S.2d 772, 832 N.E.2d 1188 [2005] ; see Palmatier v. Mr. Heater Corp., 163 A.D.3d 1228, 1230, 81 N.Y.S.3d 610 [3d Dept. 2018] ; Atlantic Aviation Invs. LLC v. MatlinPatterson Global Advisers LLC, 117 A.D.3d 415, 416, 985 N.Y.S.2d 41 [1st Dept. 2014] ). Inasmuch as the court's ultimate ruling in its earlier decision was that Reedy was not entitled to compensation as a private pay AFC, the court's statement about the number of hours that he worked was dictum.
Under the circumstances of this case and in light of the fact that "this Court's discretion to award counsel fees is as broad as that of the trial court" ( Estate of Savage v. Kredentser, 167 A.D.3d 1344, 1345, 90 N.Y.S.3d 650 [3d Dept. 2018] ; see Greenfield v. Greenfield, 234 A.D.2d 60, 62, 650 N.Y.S.2d 698 [1st Dept. 1996] ), we exercise our discretion to award respondent compensation for 475.0 hours of work reasonably performed on behalf of the children of the parties at the unchallenged rate of $100.00 per hour. Therefore the award should be reduced to $47,500.00, and we modify the order and judgment accordingly.
We have considered defendant's remaining contention and we conclude that it is without merit (see Pinto v. Pinto, 260 A.D.2d 622, 622, 688 N.Y.S.2d 701 [2d Dept. 1999], lv denied 93 N.Y.2d 817, 697 N.Y.S.2d 564, 719 N.E.2d 925 [1999], rearg. denied 94 N.Y.2d 876, 705 N.Y.S.2d 7, 726 N.E.2d 484 [2000] ; Cameron v. Cameron, 238 A.D.2d 925, 926, 661 N.Y.S.2d 113 [4th Dept. 1997] ).