Motion for Attorney's Fees in New York

What Is a Motion for Attorney's Fees?

Background

“In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser.” (Greco v. GSL Enterprises Inc. (1987) 137 Misc. 2d 714, 715, citing Alyeska Pipeline Co. v Wilderness Socy., 421 U.S. 240, 247.) The courts may not create a right to recover attorney's fees; the right must be statutory or contractual. (Id.) In the Federal jurisdiction alone there are currently well over 100 attorney's fee-shifting statutes in areas as diverse as civil rights (42 U.S.C. § 1988), antitrust (15 U.S.C. § 15), Freedom of Information (5 U.S.C. § 552 (a)(4), (E)) and Truth in Lending (15 U.S.C. § 1640(a).) There are some fee-shifting statutes in New York (e.g., CPLR 8303-a), but the most commonly seen form of fee shifting occurs by contract, as in commercial credit agreements and leases of real property. (Greco v. GSL Enterprises Inc. (1987) 137 Misc. 2d 714, 715.)

How to Structure the Motion

Discretionary Award

“[T]he award of reasonable counsel fees is within the sound discretion of the trial court.” (Ebrahimian v Long Island Railroad (2009) 269 A.D.2d 488, 489; see also Matter of Massey (2010) 73 A.D.3d 1179, 1179.)

Lodestar Method

Using the lodestar method to determine the reasonableness of attorney fees, the court will take into account:

the issues in the proceedings,
the attorneys' skill and experience,
the amount of time and labor involved,
the results obtained, and
the customary fee for similar services.

(See Morgan & Finnegan v Howe Chem. Co., Inc. (1994) 210 A.D.2d 62, 63; Ross v Congregation B'Nai Abraham Mordechai (2006) 12 Misc. 3d 559, 566.)

To arrive at a fair and appropriate award of attorneys' fees under the lodestar method the court shall determine whether the number of hours claimed were reasonably “expended from contemporaneous time sheets.” (Becker v. Empire of America Federal Savings Bank (1991) 177 A.D.2d 958; see also Matter of Rahmey v. Blum (1993) 95 A.D.2d 294, 300-301.)

The court need not automatically accept inadequately documented hours or those hours which reflect “padding, i.e., hours that are excessive or otherwise unnecessary.” (Rahmey, 95 A.D.2d at 301.) The following factors are also to be considered in assessing the reasonable hours worked:

the extent to which the hours reflect inefficiency or duplicative work;
legal work versus non-legal work, investigations, and other work performed by non-lawyers;
time spent in court differentiated from out-of-court efforts; and
the court's own knowledge, experience and expertise as to the time required to complete a similar task.

(Id.; see also Matter of Spingarn (1995) 164 Misc. 2d 891, 894.)

The Court’s Decision

Reasonable Hourly Rate

The court, in assessing attorneys' fees, must next determine a reasonable hourly rate for each attorney and each category of services rendered. (Rahmey, 95 A.D.2d at 301.) This determination is guided in large part by the “customary fee charged for similar services by lawyers in the community with like experience and of comparable reputation to those by whom the prevailing party was represented.” (Id. at 302.) The applicable reasonable rate to be applied to each attorney should be “current rather than historic hourly rates.” (Gierlinger v. Gleason (1998) 160 F3d 858, 882.)

Monetary Awards

22 NYCRR 130-1.1 deals with Costs and Sanctions. It reads, 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....
The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both....
For purposes of this Part, conduct is frivolous if:

it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, Including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.

(22 NYCRR 130-1.1.)

Documents for Motion for Attorney's Fees in New York

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Nicholas Campas, As Parent And Natural Guardian Of Infant, G.C. v. Churchill Contracting, Inc. document preview

EXHIBIT(S) - C - Settlement Statement

3 pages

FILED: ERIE COUNTY CLERK 04/10/2024 12:53 PM INDEX NO. 805128/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/10/2024 Settlement Statement and …

Case Name Nicholas Campas, As Parent And Natural Guardian Of Infant, G.C. v. Church…