Felder v. Foster
| Citation | 107 Misc.2d 782,436 N.Y.S.2d 675 |
| Parties | Gloria FELDER and Angela Cimo, Individually and on behalf of a class of persons similarly situated, Plaintiffs-Respondents, v. Edwin A. FOSTER: Dale E. Rath: James Nichols: Ralph Esposito: John R. Hoff: Ralph Quattrociocchi: Vincent B. Campbell: Wilbur F. Beh: John D. Williams: James Nagle: Louise E. Slaughter: John Stanwix: James R. Breese: Richard F. Scherberger: Anthony J. Bonadio: Samuel Columbo: Samuel Poppick: Gary Proud: Nan Johnson: David F. Gantt: Bernard B. Ehmann: Michael R. Tobin: Anthony D. Reed: Joseph N. Ferrari: Patricia Bell: Joseph R. Esposito: Lee R. Patt: Eric R. Peterson: Joanne Vanzandt: Individually and in their official capacity as Director of the Monroe County Department of Social Services; Lucien A. Morin, Individually and in his official capacity as County Manager of the County of Monroe, Defendants-Appellants, William H. Bristol, Individually and in his official capacity as Monroe County Legislator and Philip L. Toia, Individually and in his official capacity as Commissioner of the New York State Department of Social Services, Defendants. |
| Decision Date | 11 February 1981 |
| Court | United States State Supreme Court (New York) |
This motion for attorney's fees is brought by the plaintiffs pursuant to 42 U.S.C. § 1988 following an action prosecuted under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Section 1988, known as The Civil Rights Attorney's Fees Awards Act of 1976, provides that a court may award a reasonable attorney's fee to a party who has prevailed in designated civil rights actions, including ones brought under section 1983.
In prior proceedings, the plaintiffs obtained an order determining that certain named Monroe County legislators, the Monroe County manager and the Director of the Monroe County Department of Social Services had unconstitutionally disallowed them welfare benefits. In the same order, dated October 20, 1978, Justice Joseph G. Fritsch of this court granted the plaintiffs' motions for class certification, pursuant to CPLR Art. 9, and for summary judgment in their causes of action for declaratory and injunctive relief against all defendants in their official capacities. The sufficiency of an additional claim for punitive damages against the county legislators was sustained over a cross-motion for dismissal of the plaintiffs' complaint.
On November 16, 1979 the Appellate Division affirmed as to class certification and declaratory and injunctive relief, but reversed as to the punitive damage claim, ruling that under the circumstances the defendant legislators were absolutely immune from liability for damage claims under section 1983 (Felder v. Foster, 71 A.D.2d 71, 421 N.Y.S.2d 469). On February 5, 1980, an appeal by the plaintiffs to the Court of Appeals was dismissed on the ground that the order appealed from was not a final order (49 N.Y.2d 800).
Throughout the course of the litigation the plaintiffs have been represented by staff attorneys of the Monroe County Legal Assistance Corporation (hereinafter "Legal Assistance"). The amount of attorneys' fees sought is $10,222.75.
Defendants legislators and County Manager resist any grant of attorneys' fees, arguing that it is neither warranted nor appropriate and that even if such an award were properly allowable the amount sought is both excessive and inadequately substantiated. Defendant Reed (Director of the Monroe County Department of Social Services) opposes the motion on similar grounds and, in addition, has interposed a cross-motion for an order relieving him from liability.
This court has jurisdiction to entertain all proceedings brought under sections 1983 and 1988 of Title 42 of the U.S. Code (Maine v. Thiboutot, --- U.S. ----, 100 S.Ct. 2502, 65 L.Ed.2d 555; Young v. Toia, 66 A.D.2d 377, 413 N.Y.S.2d 530, app. dismd. 46 N.Y.2d 1076; Matter of Bess v. Toia, 66 A.D.2d 844, 411 N.Y.S.2d 651), and must exercise that jurisdiction when such a proceeding is properly before it (Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967).
A threshold issue facing the court is whether the plaintiffs' section 1988 application, made nine and one-half months after dismissal of the last appeal of the section 1983 claim, is time-barred. The defendants urge that dismissal here is required under the recent case of White v. N. H. Dept. of Employment Sec., 1st Cir., 629 F.2d 697, which dismissed as untimely a motion for section 1988 attorney's fees initiated four and one-half months after entry of final judgment in the plaintiff's favor in a section 1983 claim.
In assessing this particular argument we acknowledge that where, as here, an action is based solely upon Federal statute, it must be determined in accordance with Federal law (Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593; Brown v. Western R. of Alabama 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100). Moreover, although this court may generally apply New York practice and procedure (Minn. & St. Louis R. R. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961), State rules must defer to Federal law when the local practice would prevent uniform application of a Federal statute (Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, supra).
The First Circuit Court of Appeals held in White v. N. H. Dept. of Employment Sec., supra, that permitting a section 1988 motion for attorney's fees after the underlying civil rights action had been reduced to final judgment, and after the time to reopen the judgment had elapsed, would violate principles of Federal law that favor finality of judgments. White does not, as plaintiffs suggest, merely construe Rule 59(e) of the Federal Rules of Civil Procedure. Rather, it holds that the attorney's fee award authorized by section 1988 is a remedy made available to certain civil rights litigants which, like any other remedy, may be lost if not included in the final judgment. As the court pointed out:
(Id. at 704).
However, we are not compelled to resolve this two-fold question of whether White v. N. H. Dept. of Employment Sec., supra, represents the current Federal law 1 and, if so, the effect it should be given in a New York court. Both questions presuppose the existence of a final judgment on the merits. But, the action upon which this application is based has been expressly deemed non-final by the Court of Appeals (49 N.Y.2d 800). Accordingly, resolution of this important procedural question is not required in this motion.
The defendants urge that the issue of attorney's fees is a matter requiring determination by "the trial court who heard the matter in the first instance." This case never went to trial but has, up to the present, been determined on motions before three different Justices, 2 and by a panel of the Appellate Division. The defendants therefore argue "that this matter should be referred to each judge who heard this matter originally, for each judge to make a determination of whether to award attorney's fees for the particular aspect of the case before him." (Monroe County legislators' affidavit).
In support, defendants legislators cite language from Johnson v. Georgia Highway Express, Inc., 5th Cir., 488 F.2d 714 to the effect that a Federal statutory attorney's fee award should reflect the trial judge's observations of the attorney's work product, preparation and general ability before the court (Id. at 718). From this they urge that in the absence of a trial, an award of attorney's fees must be passed upon in piecemeal fashion by each participating judge.
However, I do not read Johnson as requiring such individual referrals. At issue there was the adequacy of an attorney's fee award granted by a Federal district judge rather than his authority to grant the award. While it is true that the opinion speaks of the responsibilities of the trial judge in making the fee award, that reference may be explained by the fact that the Circuit Court was reviewing the judgment of a Federal District Court which, as a matter of procedure, generally refers all matters in a case to the same judge (See, e. g., U. S. District Court N. Georgia Rule 51.32).
In contrast, New York practice provides that a motion made in an action in the Supreme Court may be determined by any motion term "in the judicial district where the action is triable or in a county adjoining the county where the action is triable." (CPLR 2212). Moreover, Judiciary Law section 147-a states:
"Any justice of the supreme court has power to hold a special or trial term of the supreme court in any county for the whole or any portion of the term, and to act upon any business which regularly comes before the term in which he is sitting, except where he is personally disqualified ..." (emphasis added).
That portion of the Civil Rights Attorney's Fees Award Act that is relevant to this controversy provides:
"In any action or proceeding to enforce a provision of section ... 1983 ... of this title, the court, in its...
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