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Scott E. Mollen[/caption]

Attorney Fees — Not for Profit Legal Services Provider - Timekeeping System Based on Blocks of .25 Hours Is Permitted — Although Some Emails May Take Seconds to Read, Other Emails May Take Much Longer to “Read, Digest, Analyze and Respond to”— Time Spent In Court Adjourning a Case May Be Billed — Although Housing Court Is a Volume Practice, Hourly Billing Is Permitted — Attorney Fees to Recover Legal Fees Is Permitted

A landlord attempted to evict a tenant, based on alleged chronic rent delinquency. The proceeding had been dismissed on the tenant’s motion for summary judgment and the tenancy had been reinstated. The tenant noted that it had the discretion to order such fees to be made payable directly to her attorneys. The tenant’s attorneys were provided by a not-for-profit legal services provider (“A”). An “A” attorney testified at a hearing that he had worked at “A” since November 2014 and had been promoted to supervising attorney in December 2016. He was a 2014 graduate of Cardozo Law School and had held internships at other legal organizations. He passed the bar in 2015, was admitted in 2016 and had an hourly billing rate of $275. “A” maintained contemporaneous computer-based time records in 1/4 hour increments. An “A” attorney submitted his records and records of another “A” attorney, as evidence. “A” attorneys billed at $150, $275 and $300 per hour. The landlord contended that the time records submitted by an “A” attorney were “completely incredible and unreliable” and “should be disregarded.” The landlord argued that there was “no justification for a quarter-hour of billing to review an email” and challenged other time entries. The landlord further asserted that there was no testimony as to the years of experience or billing rate with respect to one of “A’s” attorneys and there had been “improper block billing.” The court found that the tenant had proven her entitlement to legal fees. The lease provided that the tenant was responsible to pay, inter alia, “‘legal fees incurred by the landlord’ in a proceeding brought,…, ‘to terminate the tenant’s lease….’” RPL §234 provides “a reciprocal right to attorney fees for a tenant who substantially prevails in defending against a landlord’s lawsuit based upon the tenant’s failure to comply with a lease which permits the landlord to recover if successful in prosecuting that action.” Moreover, attorneys who work for non-profit organizations which do not charge clients for their services may still recover reasonable attorney fees under RPL §234. The court also noted that “[a]n attorney who worked on the case, and who has sufficient knowledge of the case and of the billing practices of the firm, is competent to testify in support of a party’s claim for legal fees and to lay a foundation for the billing records of all attorneys at the firm who worked on the case.” Here, the court found that “[t]he billing records, testimony and post-trial affirmations of [tenant’s] counsel are sufficient to determine the hours reasonably expended in litigating this case.” The court also stated that a timekeeping system based on blocks of .25 hours is acceptable. The court acknowledged that “many e-mails take seconds to a few minutes to read.” However, the court also stated that it is “common knowledge that many other e-mails take much longer than a few minutes to read, digest, analyze and respond to.” The court further explained that in addition to testimony of witnesses, a court “may consider its own knowledge and experience concerning reasonable…fees and in the light of such knowledge and experience, the court may form an independent judgment from the facts and evidence before it as to the nature and extent of the services rendered, make an appraisal of such services, and determine the reasonable value thereof.” The court reduced certain charges that appeared somewhat excessive and reduced the hourly rate for one attorney based on the experience level. The court declined to reduce the amount of time that an attorney spent in Housing Court. The court noted that “an attorney who spends two hours in court even if only for the purpose of adjourning just one case is entitled to bill for that time. It is…certainly reasonable for an attorney’s time spent waiting for their adversary to appear and/or the court to call the case to be billed in full.” The court rejected the landlord’s argument that since the “Housing court is a volume practice,” hourly billing is inappropriate. The court viewed such argument as “misguided and undercut by petitioner’s attorneys’ own billing records.” Although the landlord’s attorneys “may charge modest rates for its volume practice, sizable attorney fees awards based on hourly billings can be and are awarded in Housing Court proceedings where appropriate.” The landlord had also objected, inter alia, to two entries billed at .5 hours for copying and reviewing files. The landlord contended that such work should be done by paralegals. The court accepted the “A” attorney’s explanation that “retrieving and copying time was minimal and that the bulk of the work consisted of reviewing what were in some cases large files to determine which papers were relevant to respondent’s case, work that a paralegal would not have been able to do.” The court also noted that there are differences in staffing structures at “for-profit and not-for-profit law offices,” but stated apart from that, the entries were “well within the bounds of reasonableness.” The court then found that generally, the billing rates for the “A” attorneys were “appropriate and reasonable for attorneys with their respective years of legal experience who appear regularly in Bronx Housing Court.” The court reduced one attorney’s rate from $275 to $250, “based on the totality of the evidence presented” and had reduced an entry for preparation, serving and filing of a notice of entry, since such work could have been done by a paralegal or intern. The court explained that in approving a billing rate, it considered an attorney’s “experience, his education, the degree of complexity of the litigation, his responsibilities in this matter, the result achieved and the prevailing rates in this area.” Finally, the court explained that “[a]ttorneys are entitled to an award of attorney fees for services performed to recover a fee….” Accordingly, the court granted the tenant’s attorneys an amount of $8,961.25. Comment: The court had also observed that some of the landlord’s objections to certain evidence “resulted in the hearing lasting longer than it might otherwise have. For example, [landlord] objected to [tenant attorneys’] resumé going into evidence…,and then [defendant’s attorney] needed additional time to testify about his educational and employment background.” Since the court had sustained an objection to a tenant attorney testifying about work that another tenant attorney did, the other attorney was called to the witness stand as a second witness. The court explained that case law permits an attorney who worked on the case and is familiar with the firm’s billing records to introduce into evidence, the firm’s billing records for other attorneys who worked on the case. The court cited language by Judge Gerald Lebovits, in an unrelated case, wherein he observed that “petitioner’s proposition would only serve to increase the amount of legal fees due if every person who worked on a case were required to testify in support of the claim for fees.” It is not unusual that an adversary counsel will pursue a “scorched earth” approach by engaging in extensive motion practice and pursuing unsuccessful appeals and then complain that their adversary’s legal bills are excessive. In most cases, an attorney cannot do the minimal amount of work to respond to a motion or appeal, merely because they think the motion or appeal is baseless. Generally, attorneys must be thorough because prior to a court decision, they do not know how a judge views a witness, motion or appeal. Moreover, attorneys win cases they did not think they would win and have lost cases that they didn’t think they would lose. Hindsight is wonderful, but not available at the outset of a matter. Of course, the amount of an attorney’s work must be reasonable under the circumstances. My comment is a general observation and does not refer to the subject case. S.B.H. Realty v. Santana, 51678/2016, NYLJ 1202799913875, at *1 (Civ., BX, Decided Sept. 29, 2017), Lutwak, J.

Land Use — Preliminary Injunction Against Enforcement of Village’s Moratorium Granted— "Narrowly Tailored" Moratorium Appeared to Be "Invalid Measure to Halt Development" Court Noted Strong Community Opposition

The plaintiffs sought “a preliminary injunction, enjoining,…and staying” the defendant village, its Board of Trustees, Board of Appeals (ZBA) and superintendent of the building department, “from enforcing the moratorium adopted as Local Law 4 of 2017; and from enforcing or employing the definition of the term ‘street’ as set forth in village Code §340-2” (§340-2), as against the amended site plan application submitted by plaintiffs” (application), regarding the subject property. The salient issue was whether the enactment of the moratorium was “a legitimate exercise” of the village’s “police power, and/or whether said moratorium applies to plaintiffs’ amended site plan application.” The court also had to determine “whether the village review of a site plan application which includes a proposed public roadway determination, absent formal dedication, deems the application properly denied due to application of the term ‘street’ as set forth in the…Code.” The plaintiffs asserted that the moratorium did “not apply to their…site plan application and the village building department [building dept.] should be directed to continue to process” the application. The plaintiffs also sought a declaration that the subject moratorium “is illegal” and that the village’s “definition of the term ‘street’ in [§340-2]…is preempted by village and State Law and as such should be deemed null and void.” Finally, the plaintiffs’ Art. 78 Petition asserted that “the [ZBA’s] denial of plaintiff’s…application was arbitrary and capricious.” The plaintiff applied to the village to create four new building lots (lots). Each lot had “at least eighty (80) feet of frontage on a street.” Two of the proposed lots would have “frontage on, and be accessed by, a proposed new street, to be known as Killarney Lane.” The plaintiffs claim that the village’s “enactment of a moratorium as applied to ‘any proposed use or development of any property for a private road, or of any property, building or structure which does not provide at least the required minimum frontage on a public road’ to be improper as applied to the plaintiffs’ …application.’” The plaintiffs’ original application proposed four new lots for improvement of single homes, with the newly proposed Killarney Lane, to be dedicated as a public village roadway. The plaintiffs submitted “evidence of numerous overtures to the village…to condition the…application upon the offer of dedication of Killarney Lane as a public roadway.” The village deemed “the plaintiffs’ overtures as premature.” The application was modified, at the village’s request, “to eliminate narrow strips of land running along the proposed Killarney Lane for proposed Lots 3 and 4. This modification reduced the required eighty (80) feet street frontage requirement, and [ZBA] approval was required to permit the frontage deficiencies.” Following public hearings, the plaintiffs’ application for relief from the street frontage requirement for Lots 3 and 4 was denied. Prior to the ZBA’s decision, the plaintiffs had proposed that their original application be reviewed by the village planning board. The amended site plan restored the street frontages for Lots 3 and 4 and again proposed village road of Killarney Lane be dedicated as a public roadway. The request for planning board review was denied by the village building superintendent. The superintendent asserted that the village code (code) required “street frontage for each proposed residential lot to be at least 80 feet on a public street, and that Killarney Lane is currently a private road” based on the definition of “street” in the code. The village stated that the plaintiffs could appeal such denial. The court noted that the moratorium was enacted on July 10, 2017, two weeks following plaintiffs’ requested that their amended site plan be reviewed by the planning board. The plaintiffs argued that “further delay in an already drawn-out process due to the… moratorium is an unauthorized interference of its property interest and constitutes irreparable harm as a matter of law.” The village countered that the amended site plan, including 80 feet of frontage on each of the four proposed lots and the intention that Killarney Lane be a public road, had been submitted for village planning board review while “plaintiffs’ application for variance relief was pending before the village zoning board, and was properly rejected upon a determination by the village building superintendent that Killarney Lane is a private road and did not comply with the…code requirements that all new lots have minimum frontage on a public road.” The village also argued that preliminary injunctive relief was moot, since the village had already determined that Killarney Lane was not a public street and the moratorium applies to the plaintiffs’ project. The court explained, regarding the moratorium, that:

[a]n exercise of police power which interferes with the enjoyment of property must be a reasonable, necessary, and limited response directed at redressing a genuine crisis or emergency…,while a zoning enactment must be reasonably related to and in accord with a comprehensive plan governing land use…. However, “a municipality may not invoke its police powers solely as a pretext to assuage strident community opposition”. . ., nor may a zoning enactment exceed the municipality’s powers or operate for the accomplishment of purposes extraneous to land use…. In the field of moratoria, it is well settled that the enactment of a moratorium upon certain land use or development within a municipality will be considered a valid stopgap or interim measure where it is reasonably designed to temporarily halt development while the municipality considers, inter alia, comprehensive zoning changes…. However, the moratorium must be for a valid and reasonable purpose and “the life of such legislation may not exceed a reasonable period of time”….

The moratorium impacts “any proposed use or development of any property for a private road, or of any property, building or structure which does not provide at least the required minimum frontage on a public road….” The court found that the village submission did not provide “any evidence to support a comprehensive review indicative of a certain land use or development that requires redressing.” “Rather, the plain language of the…moratorium mirrors each of the plaintiffs’ proposed applications to subdivide the…property.” The court cited evidence of strong community opposition to plaintiffs’ subdivision application and “the narrowly tailored language of the moratorium, which bespeaks of an invalid measure to halt development.” The court further stated that as to “the application of the term ‘street’ as defined in the…code, the evidence…shows that plaintiffs’…application, which at the outset, included an offer of dedication of Killarney Lane as a public road, should be included in the village’s review of same. To separate one from the other frustrates not only the purpose of the fee owner’s ability to develop its property but the village’s ability to appropriately review applications for subdivisions.” Accordingly, the court granted the plaintiffs’ motion for injunctive and declaratory relief to the extent that the moratorium was declared “null and void,” the amended site plan application was “remanded to the village trustees for a determination upon plaintiffs’ offer of dedication of Killarney Lane as a public street, within ninety (90) days of the date of this order.” Since “the amended site plan application supersedes the application upon which the village zoning board rendered a decision,” the court did not need to review the merits of plaintiffs’ request for relief pursuant to Art. 78. O’Reilly v. Incorporated Village of Rockville Centre, 3064/2017, NYLJ 1202801080528, at *1 (Sup., NA, Decided Oct. 10, 2017), Galasso, J. Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John’s University School of Law.