Preview
FILED: NEW YORK COUNTY CLERK 05/15/2023 08:29 PM INDEX NO. 950698/2020
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JANE DOE, Index Number:
Plaintiff, 950698/2020
-against- AFFIRMATION IN
OPPOSITION TO
DAVID BALL, PLAINTIFF’S FEE
Defendant. APPLICATION
ROBERT J. GENIS, ESQ. an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following pursuant to CPLR § 2106; that I am a member
of the law firm of SONIN & GENIS, LLC., attorneys for the defendant herein and, based upon a
review of the facts contained in my file, I am fully familiar with all the facts and circumstances
herein and make this affirmation in opposition to the plaintiff’s bill of fees and expenses in
regard to motion sequence 3 and 4.
PRELIMINARY NOTE
1. Your affiant previously on and off the record apologized personally to both plaintiff’s counsel
and the court, acknowledged that defendant made inadvertent mistakes and explained how
they occurred, expressed deep and profound remorse, regret, personal and professional
embarrassment, shame and humiliation, and withdrew claims that formed part of the basis for
the sanctions.
2. The purpose of sanctioning an attorney is to deter inappropriate conduct. Your affiant has had
a painful lesson and such conduct will not recur. As noted on the record, your affiant has been
practicing law for almost 40 years. Despite this long and public record to draw from, Plaintiff
has not shown that I am a recidivist or have a pattern of engaging in improper behavior; this
was aberrational and abhorrent conduct taking place in the context of heated litigation during
a pandemic, by short-staffed counsel representing my only defense case (as noted on the
record, your affiant only represents plaintiff’s, including in CVA cases) of an uninsured
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individual. If sanctions are to be imposed for “bad behavior”, then $1,500 is a significant
punishment. If sanctions are to compensate plaintiff’s counsel for “unnecessary” work, then
the amount of $2,386.80 for 6.8 hours for work performed Jordan Rutsky (“Rutsky”) at
$351/hr; and $1050.00 for 7 hours for the work performed by the associate at $150/hr is
suggested, for a total amount of $ 3,436.80. See, Memo of Law.
3. Defendant disputes the reasonableness of the fees sought on multiple levels, including the
hourly rates, time spent and who spent it and why. Plaintiff has failed to submit detailed
contemporaneous time records that state exactly who did what, when and why, and that it
was necessary and reasonable, and did not otherwise have to be done and as such, entitled to
compensation. Defendant submits that the amounts sought are excessive and include fees for
administrative or unnecessary services.
RATES NOT JUSTIFIED
4. Plaintiff’s submission must be reduced as it is not based on Plaintiff’s firms’ actual billing
practices. As noted in ¶3 of Plaintiff’s submission, “As a plaintiff’s attorney who primarily
handles matters on contingency, my office does not have set hourly rates for billing.”1
5. Rutsky, of Merson Law PLLC (“Merson”), admits that he does not normally charge $ 750/hr2
and the basis of the rate provided is what another law firm, Emery Celli Brinckerhoff Abady
Ward & Maazel (“Emery”)3 albeit with different specializations, charges. The rate sought is
excessive per se. See Memo of Law.
1While Plaintiff’s counsel avers he has been keeping track of the fee for fee splitting purposes
(See Docket 134, ¶8), it is not clear from the entries that the time sheet provided was
contemporaneously created with the activities listed. In addition, most of the entries are generic
and do not indicate exactly what was being done at any given time, making it difficult to know
what is and is not justifiable work performed. See, Defendant’s Memorandum of Law.
2 Rutsky has not in fact performed work on a billable basis and a putative offer is not the same as
actual acceptance and work performed at this rate.
3 https://ecbawm.com/
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6. The Emery firm does bill by the hour, and aside from civil rights litigation, of which sexual
abuse claims are a component of the practice, Emery areas of specialty include commercial,
including Financial Industry Regulatory Authority (FINRA) arbitrations, and criminal
defense, including white collar matters, areas of law which command higher billable rates.
7. Rutsky has failed to submit sufficient admissible evidence of the training, background,
experience or skills related to the issues in the case at bar for the attorney, junior associate, or
paralegal involved in this matter to justify the hourly rates sought.
8. While Jordan Merson has a laudable record, he has not worked on this file or made any
application for fees. Rutsky has not identified any prior determination by a court of what his
hourly rate should be, or any verdicts that he personally obtained, any appeals that he
personally drafted and won, any publications that he has authored, any CLEs that he has
taught, or any leadership roles in bar association; merely being a lawyer for almost 18 years
and being a member of a “team” does not automatically entitle a lawyer to a particular hourly
rate.
9. Courts have routinely found prevailing rates for attorneys to be somewhere between $70-
$350/hr; it is respectfully requested that the partner billing rate in this matter should be
reduced from $750.00/hr to a maximum of $351/hour. See, Memo of Law.
10. As Rutsky states the junior associate is a recent attorney, her billable rate should be reduced
proportionally and should be in the $100-$150 range.
11. Rutsky’s paralegal should be billed at no more than $80/hr, and not at the same rate for a
junior associate ($200/hr).
OPPOSITION TO DEFENDANT’S CROSS-MOTION SEQ #3
12. Plaintiff’s counsel is seeking reimbursement for 6.7 hours to oppose defendant’s motion for a
protective order and quash discovery demands; 6.5 hours of which is billed to the partner to
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review, oppose and edit. Plaintiff’s submission fails to detail specifically what was done and
how long each task took.
13. There is no justification given why an attorney at a partner level was required to expend so
much time on routine discovery motions that could have been handled by an associate
attorney or a paralegal. It is not clear why an associate or paralegal would need to expend so
much time on routine discovery motion practice; an experienced attorney should be able to
perform this work in less than 3 hours, and the billable time for this should be reduced
accordingly. The amount of time reasonably allocated for this should be billed at the
associate level of $100-$150/hr, for a total of $ 450.00.
ADMINISTRATIVE TASKS
14. Plaintiff alleges that it took 12 minutes (0.2 hours) to upload to NYSCEF five (5) documents,
As the uploading of documents is a routine, administrative task, typically performed by
clerical staff; it takes no specialized training and this time should be discounted entirely.
PLAINTIFF’S CROSS-MOTION FOR SANCTIONS MOT. SEQ. 4
15. After Rutsky prepared his opposition to defendant’s motion to dismiss and cross-motion for
sanctions (1.2 hrs on 4-5-22), the associate spent 2 hrs (4-11-22) drafting the affirmation and
cross motion for sanctions, then Rutsky prepared the cross motion for sanctions (3.4 hrs on 4-
12-22 and 1.2 hrs on 4-13-22), then the associate again drafted the affirmation in opposition
and cross motion (1.5 hrs on 4-13-22), then Rutsky again prepared the cross motion (2.5 hrs
on 4-14-22), then the associate did research (4-14-22, .5 hr), then Rutsky spent 1 hr
reviewing and efiling said papers (it does not take 1 hr to efile, an administrative task
performed by clerical staff, not a partner). 9.3 hours were spent by Rutsky in repeatedly
drafting the same opposition and cross motion at the same time a junior associate spent 4
hours performing the same task, for a total of 13.3 hrs. Docket Entry 135.
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16. Because the time outlined on the spreadsheet provided does not explain what exactly was
done for the multiple entries for “prepared cross-motion for sanctions”, it is not possible to
determine what tasks were be performed or the reasonableness of the time spent or if the
work was duplicative. As only .5 hrs were spent on research, done after almost 12 hrs of
supposed drafting, suggests there was nothing unusual or novel that would have required
such labor intensive drafting of the plaintiff’s papers.
17. As plaintiff made allegations in her complaint of out-of-state torts in Pennsylvania,
purportedly committed by a nonresident, defendant made a proper motion to dismiss these
claims; this Honorable Court denied said motion, it did NOT sanction the defendants for this.
Plaintiff cannot seek attorneys’ fees for this work.4
18. Defendant should only be charged for the 4.0 hours the associate spent on research and
drafting, with two hours for review by the partner, at the beginning and end of the drafting
process for a billable amount of 1,302.00.
NO BASIS FOR CHARGING DEFENDANT FOR ADMINISTRATIVE TASKS
19. Plaintiff has submitted 1 hr of billing for communications with his client and 1 hr of billing
for numerous administrative emails regarding scheduling, all by Rutsky. Rutsky is not
entitled to payment for his conversations and emails with his client, or for every
administrative email with the Court about the scheduling. These 2 hrs should be disallowed.
CONCLUSION
20. For the reasons set forth above and supported by the law in the accompanying Memorandum
of Law, Defendant respectfully requests this Honorable Court deny the fees sought and award
fees in the amount of $,3436.80.
4While defendant withdrew that part of his application for dismissal regarding North Carolina
and acknowledges that plaintiff did oppose this part of the motion, it did not require any
additional research, and as noted above, the time billed for is excessive herein.
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FILED: NEW YORK COUNTY CLERK 05/15/2023 08:29 PM INDEX NO. 950698/2020
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/15/2023
Dated: Bronx, New York
May 15, 2023
Robert J. Genis
Robert J. Genis, Esq.
Sonin & Genis, LLC
Attorneys for Defendant
CERTIFICATE OF COMPLIANCE
1. This Affirmation complies with the type-volume limitation of 22 NYCRR 202.8b
because this affirmation contains 1577 words, excluding the parts exempted by
the rule.
2. This Affirmation complies with the typeface requirements of 22 NYCRR
202.5(a)because this affirmation has been prepared using Microsoft Word in
Time New Roman Style, 12 point font and 1” margins. All footnotes are in Times
New Roman Style, 12 point font.
3. As this Affirmation does not exceed 4,500 words, the Table of Contents has not
been bookmarked.
Dated: May 15, 2023
Bronx, New York
Robert J. Genis
Robert J. Genis
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Preview
FILED: NEW YORK COUNTY CLERK 05/15/2023 08:29 PM INDEX NO. 950698/2020 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JANE DOE, Index Number: Plaintiff, 950698/2020 -against- AFFIRMATION IN OPPOSITION TO DAVID BALL, PLAINTIFF’S FEE Defendant. APPLICATION ROBERT J. GENIS, ESQ. an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following pursuant to CPLR § 2106; that I am a member of the law firm of SONIN & GENIS, LLC., attorneys for the defendant herein and, based upon a review of the facts contained in my file, I am fully familiar with all the facts and circumstances herein and make this affirmation in opposition to the plaintiff’s bill of fees and expenses in regard to motion sequence 3 and 4. PRELIMINARY NOTE 1. Your affiant previously on and off the record apologized personally to both plaintiff’s counsel and the court, acknowledged that defendant made inadvertent mistakes and explained how they occurred, expressed deep and profound remorse, regret, personal and professional embarrassment, shame and humiliation, and withdrew claims that formed part of the basis for the sanctions. 2. The purpose of sanctioning an attorney is to deter inappropriate conduct. Your affiant has had a painful lesson and such conduct will not recur. As noted on the record, your affiant has been practicing law for almost 40 years. Despite this long and public record to draw from, Plaintiff has not shown that I am a recidivist or have a pattern of engaging in improper behavior; this was aberrational and abhorrent conduct taking place in the context of heated litigation during a pandemic, by short-staffed counsel representing my only defense case (as noted on the record, your affiant only represents plaintiff’s, including in CVA cases) of an uninsured 1 1 of 6 FILED: NEW YORK COUNTY CLERK 05/15/2023 08:29 PM INDEX NO. 950698/2020 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/15/2023 individual. If sanctions are to be imposed for “bad behavior”, then $1,500 is a significant punishment. If sanctions are to compensate plaintiff’s counsel for “unnecessary” work, then the amount of $2,386.80 for 6.8 hours for work performed Jordan Rutsky (“Rutsky”) at $351/hr; and $1050.00 for 7 hours for the work performed by the associate at $150/hr is suggested, for a total amount of $ 3,436.80. See, Memo of Law. 3. Defendant disputes the reasonableness of the fees sought on multiple levels, including the hourly rates, time spent and who spent it and why. Plaintiff has failed to submit detailed contemporaneous time records that state exactly who did what, when and why, and that it was necessary and reasonable, and did not otherwise have to be done and as such, entitled to compensation. Defendant submits that the amounts sought are excessive and include fees for administrative or unnecessary services. RATES NOT JUSTIFIED 4. Plaintiff’s submission must be reduced as it is not based on Plaintiff’s firms’ actual billing practices. As noted in ¶3 of Plaintiff’s submission, “As a plaintiff’s attorney who primarily handles matters on contingency, my office does not have set hourly rates for billing.”1 5. Rutsky, of Merson Law PLLC (“Merson”), admits that he does not normally charge $ 750/hr2 and the basis of the rate provided is what another law firm, Emery Celli Brinckerhoff Abady Ward & Maazel (“Emery”)3 albeit with different specializations, charges. The rate sought is excessive per se. See Memo of Law. 1While Plaintiff’s counsel avers he has been keeping track of the fee for fee splitting purposes (See Docket 134, ¶8), it is not clear from the entries that the time sheet provided was contemporaneously created with the activities listed. In addition, most of the entries are generic and do not indicate exactly what was being done at any given time, making it difficult to know what is and is not justifiable work performed. See, Defendant’s Memorandum of Law. 2 Rutsky has not in fact performed work on a billable basis and a putative offer is not the same as actual acceptance and work performed at this rate. 3 https://ecbawm.com/ 2 2 of 6 FILED: NEW YORK COUNTY CLERK 05/15/2023 08:29 PM INDEX NO. 950698/2020 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/15/2023 6. The Emery firm does bill by the hour, and aside from civil rights litigation, of which sexual abuse claims are a component of the practice, Emery areas of specialty include commercial, including Financial Industry Regulatory Authority (FINRA) arbitrations, and criminal defense, including white collar matters, areas of law which command higher billable rates. 7. Rutsky has failed to submit sufficient admissible evidence of the training, background, experience or skills related to the issues in the case at bar for the attorney, junior associate, or paralegal involved in this matter to justify the hourly rates sought. 8. While Jordan Merson has a laudable record, he has not worked on this file or made any application for fees. Rutsky has not identified any prior determination by a court of what his hourly rate should be, or any verdicts that he personally obtained, any appeals that he personally drafted and won, any publications that he has authored, any CLEs that he has taught, or any leadership roles in bar association; merely being a lawyer for almost 18 years and being a member of a “team” does not automatically entitle a lawyer to a particular hourly rate. 9. Courts have routinely found prevailing rates for attorneys to be somewhere between $70- $350/hr; it is respectfully requested that the partner billing rate in this matter should be reduced from $750.00/hr to a maximum of $351/hour. See, Memo of Law. 10. As Rutsky states the junior associate is a recent attorney, her billable rate should be reduced proportionally and should be in the $100-$150 range. 11. Rutsky’s paralegal should be billed at no more than $80/hr, and not at the same rate for a junior associate ($200/hr). OPPOSITION TO DEFENDANT’S CROSS-MOTION SEQ #3 12. Plaintiff’s counsel is seeking reimbursement for 6.7 hours to oppose defendant’s motion for a protective order and quash discovery demands; 6.5 hours of which is billed to the partner to 3 3 of 6 FILED: NEW YORK COUNTY CLERK 05/15/2023 08:29 PM INDEX NO. 950698/2020 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/15/2023 review, oppose and edit. Plaintiff’s submission fails to detail specifically what was done and how long each task took. 13. There is no justification given why an attorney at a partner level was required to expend so much time on routine discovery motions that could have been handled by an associate attorney or a paralegal. It is not clear why an associate or paralegal would need to expend so much time on routine discovery motion practice; an experienced attorney should be able to perform this work in less than 3 hours, and the billable time for this should be reduced accordingly. The amount of time reasonably allocated for this should be billed at the associate level of $100-$150/hr, for a total of $ 450.00. ADMINISTRATIVE TASKS 14. Plaintiff alleges that it took 12 minutes (0.2 hours) to upload to NYSCEF five (5) documents, As the uploading of documents is a routine, administrative task, typically performed by clerical staff; it takes no specialized training and this time should be discounted entirely. PLAINTIFF’S CROSS-MOTION FOR SANCTIONS MOT. SEQ. 4 15. After Rutsky prepared his opposition to defendant’s motion to dismiss and cross-motion for sanctions (1.2 hrs on 4-5-22), the associate spent 2 hrs (4-11-22) drafting the affirmation and cross motion for sanctions, then Rutsky prepared the cross motion for sanctions (3.4 hrs on 4- 12-22 and 1.2 hrs on 4-13-22), then the associate again drafted the affirmation in opposition and cross motion (1.5 hrs on 4-13-22), then Rutsky again prepared the cross motion (2.5 hrs on 4-14-22), then the associate did research (4-14-22, .5 hr), then Rutsky spent 1 hr reviewing and efiling said papers (it does not take 1 hr to efile, an administrative task performed by clerical staff, not a partner). 9.3 hours were spent by Rutsky in repeatedly drafting the same opposition and cross motion at the same time a junior associate spent 4 hours performing the same task, for a total of 13.3 hrs. Docket Entry 135. 4 4 of 6 FILED: NEW YORK COUNTY CLERK 05/15/2023 08:29 PM INDEX NO. 950698/2020 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/15/2023 16. Because the time outlined on the spreadsheet provided does not explain what exactly was done for the multiple entries for “prepared cross-motion for sanctions”, it is not possible to determine what tasks were be performed or the reasonableness of the time spent or if the work was duplicative. As only .5 hrs were spent on research, done after almost 12 hrs of supposed drafting, suggests there was nothing unusual or novel that would have required such labor intensive drafting of the plaintiff’s papers. 17. As plaintiff made allegations in her complaint of out-of-state torts in Pennsylvania, purportedly committed by a nonresident, defendant made a proper motion to dismiss these claims; this Honorable Court denied said motion, it did NOT sanction the defendants for this. Plaintiff cannot seek attorneys’ fees for this work.4 18. Defendant should only be charged for the 4.0 hours the associate spent on research and drafting, with two hours for review by the partner, at the beginning and end of the drafting process for a billable amount of 1,302.00. NO BASIS FOR CHARGING DEFENDANT FOR ADMINISTRATIVE TASKS 19. Plaintiff has submitted 1 hr of billing for communications with his client and 1 hr of billing for numerous administrative emails regarding scheduling, all by Rutsky. Rutsky is not entitled to payment for his conversations and emails with his client, or for every administrative email with the Court about the scheduling. These 2 hrs should be disallowed. CONCLUSION 20. For the reasons set forth above and supported by the law in the accompanying Memorandum of Law, Defendant respectfully requests this Honorable Court deny the fees sought and award fees in the amount of $,3436.80. 4While defendant withdrew that part of his application for dismissal regarding North Carolina and acknowledges that plaintiff did oppose this part of the motion, it did not require any additional research, and as noted above, the time billed for is excessive herein. 5 5 of 6 FILED: NEW YORK COUNTY CLERK 05/15/2023 08:29 PM INDEX NO. 950698/2020 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/15/2023 Dated: Bronx, New York May 15, 2023 Robert J. Genis Robert J. Genis, Esq. Sonin & Genis, LLC Attorneys for Defendant CERTIFICATE OF COMPLIANCE 1. This Affirmation complies with the type-volume limitation of 22 NYCRR 202.8b because this affirmation contains 1577 words, excluding the parts exempted by the rule. 2. This Affirmation complies with the typeface requirements of 22 NYCRR 202.5(a)because this affirmation has been prepared using Microsoft Word in Time New Roman Style, 12 point font and 1” margins. All footnotes are in Times New Roman Style, 12 point font. 3. As this Affirmation does not exceed 4,500 words, the Table of Contents has not been bookmarked. Dated: May 15, 2023 Bronx, New York Robert J. Genis Robert J. Genis 6 6 of 6