McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., LINCOLN-MERCUR

• Decision Date: 29 October 1997
• Docket Number: LINCOLN-MERCUR,INC
• Citation: 176 Misc.2d 325,672 N.Y.S.2d 230
• Parties: , 1998 N.Y. Slip Op. 98,181 Maureen McINTYRE, Plaintiff, v. MANHATTAN FORD,, Defendant.
• Court: New York Supreme Court

Page 230

672 N.Y.S.2d 230

176 Misc.2d 325, 1998 N.Y. Slip Op. 98,181

Maureen McINTYRE, Plaintiff, v. MANHATTAN FORD, LINCOLN-MERCURY, INC., Defendant.

Supreme Court, New York County.

Oct. 29, 1997.

Schwartz & Perry, New York City (Murray Schwartz, of counsel), for plaintiff.

Mayer, Brown & Platt, New York City (Gary D. Freidman, of counsel), for defendant.

LORRAINE S. MILLER, Justice.

On June 3 and 4, 1997 a unanimous jury awarded plaintiff, Maureen McIntryre, damages of $6,600,000 ($1,600,000 in compensatory and $5,000,000 in punitive damages) at the conclusion of an intensive seven-day trial on her claims of sexual harassment, retaliation and intentional infliction of emotional distress. ¹

Plaintiff now seeks costs of $2051.30 and attorney's fees pursuant to the New York City Administrative Code § 8-502[f], which specifically authorizes an award to the prevailing party of such allowances where, as here, there has been a finding of discrimination by the trier of fact. Plaintiff also seeks an award of pre-verdict interest of $362,000 from December 1, 1991 on both the compensatory damages and back pay awards.

In order to determine the amount to be assessed in this complex matter, the court held a hearing on September 22, 23 and 24, 1998. Plaintiff's lead counsel, Murray Schwartz, and his partner, Davida Perry, testified as to the nature and hours spent on the matter from the time of their retention in early January, 1994. There was also testimony by an employee, Alexander Jeffrey.

I. DISCUSSION

In 1991 the NYC Council saw fit to authorize by statute the award of attorney's fees and costs to the victim of discrimination who prevailed, as here, in a lawsuit (Admin.Code § 8-502[f] ). The rationale behind such legislation appears to be an intent to make the prevailing party as whole as possible, as well as to deter others from engaging in similar reprehensible conduct. Accordingly, the analysis herein can be guided by but should take a somewhat different route from the typical quantum meruit analysis for this is not a case of an attorney suing his own client because of wrongful discharge or a refusal to pay fees. Rather this is an additional award to the plaintiff by statute.

In determining the amount of legal fees to be assessed against the defendant herein, the court also notes that discrimination litigation significantly differs from other types of cases that regularly appear before our state courts. Indeed, the field has become one of particular specialization requiring practitioners to be conversant with a broad variety of federal statutes and decisions in addition to the Human Rights Laws enacted by both New York State and the City of New York.

A. CALCULATING REASONABLE ATTORNEY'S FEES

The fixation of legal fees is very troubling to a court for in analyzing the fees sought, it appears to demean a colleague and denigrate his/her services, competence and/or integrity. Indeed, several courts have struggled with how fees should be measured. In Matter of Potts, 213 A.D. 59, 209 N.Y.S. 655, lv. denied 241 N.Y. 510, 150 N.E. 533, affd. 241 N.Y. 593, 150 N.E. 568, the Fourth Department said, in part, that a court in determining the reasonableness of an attorney's fee should consider the time spent, the difficulties involved, the nature of the services, amount involved, professional standing of counsel and results obtained (see also, Matter of Freeman, 34 N.Y.2d 1, 355 N.Y.S.2d 336, 311 N.E.2d 480). The evaluation of what constitutes reasonable counsel fees has consistently been held to be a matter within the sound discretion of the court (DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176, 518 N.E.2d 1168; Lefkowitz v. Van Ess, 166 A.D.2d 556, 560 N.Y.S.2d 838). Similarly, the cutting of fees claimed is a proper exercise of discretion as well (Matter of Ury, 108 In Matter of Rahmey v. Blum, 95 A.D.2d 294, 466 N.Y.S.2d 350, the court set out an "analytical framework" as a guide:

A.D.2d 816, 485 N.Y.S.2d 329, lv. denied 64 N.Y.2d 611, 490 N.Y.S.2d 1024, 479 N.E.2d 827).

(a) Hours reasonably expended

The court suggested the following formula:

(1) hours which reflect inefficiency or duplication of services should be discounted; (2) hours that are excessive, unnecessary or which reflect "padding" should be disallowed; (3) legal work should be differentiated from nonlegal work such as investigation, clerical work, the compilation of facts and other types of work which can be accomplished by nonlawyers who command lesser rates; (4) time spent in court should be differentiated from time expended for out-of-court services; and (5) the hours claimed should be weighed against the court's own knowledge, experience and expertise as to the time required to complete similar activities.

(b) Reasonable hourly rate

The next step in determining attorney's fees is to arrive at a reasonable hourly charge for each category of services rendered. [T]he reasonable hourly rate should be based on 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 (see, Johnson v. Georgia Highway Express, 488 F.2d 714). Thus, the hourly rate charged by an attorney will normally reflect the training, background, experience and skill of the individual attorney.

(c) Computation of fee

The third step is to multiply the number of hours reasonably expended on the litigation by a reasonable hourly rate.

(d) Adjustments to fee

The initial "lodestar" estimate, which is predicated on an objective assessment of reasonableness, may be reduced (or increased) by the court based on the following factors:

(1) the novelty and difficulty of the questions presented; (2) the skill requisite to perform the legal services properly; (3) the preclusion of other employment by the attorney due to acceptance of the case; (4) whether the fee is fixed or contingent; (5) time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the amount involved and the results obtained; (8) the undesirability of the case; and (9) awards in similar cases (Matter of Rahmey, supra; Matter of Karp [Cooper], 145 A.D.2d 208, 537 N.Y.S.2d 510).

While many of the federal circuits mandate the maintenance of contemporaneous time records as a prerequisite to recovery of fees (Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40), the First Department, in Matter of Karp, supra, declined "to adopt such a hard and fast rule that reconstructed time records can never serve as a basis for compensation." As the Court said in Jobin Waterproofing Corp. v. Riverbay Corp., 11/4/92, NYLJ, p. 25, col. 3, a court should look at the big picture to see if the total time expended for each portion of the case was reasonable (see also, U.S. Football League v. National Football League, 704 F.Supp. 474.).

B. THE WORK PERFORMED BY PLAINTIFF'S COUNSEL

Murray Schwartz, has been in practice almost 48 years, holds an L.L.M., and is an accomplished litigator. When he was retained by plaintiff a contingent fee arrangement was entered into for 38% of any recovery obtained. He testified his hourly fee has been $385 for the past 4 years and is predicated upon his years in practice, experience both as a litigator and long-time specialist in the employment area, status in the profession, lecturer and writer in the field. ²

His partner, Davida Perry, was admitted 10 years ago to the New York and Massachusetts Bars, and was employed by law firms in Boston until she returned to New York in 1991. She became a partner in her father's firm in 1995 and testified that she has worked with him on the firm's employment cases (approximately 60), including appeals before the First Department and Court of Appeals. Her hourly rate was said to be $250.

There was also testimony by an associate in their office, Alexander Jeffrey, a 1996 law school graduate awaiting admission to the Bar, who maintained and submitted contemporaneous time sheets commencing 5/12/97 for services performed in preparation for trial. Plaintiff is asking his hourly rate be fixed at $65. ³

WORK DONE PRIOR TO MEDIATION

The court's observations made throughout these proceedings were that plaintiff received dedicated lawyering in the best tradition of our profession. Mr. Schwartz testified that he did not maintain actual time records until mediation commenced in April, 1997 and prospects of a resolution faded. The court finds this explanation reasonable. In arriving at an estimate of the hours expended during this three and one-half year period, he testified that he had numerous conferences with his client, prepared an extensive summons and complaint and had five meetings with defense counsel in an attempt to resolve this matter.

In addition, preliminary conferences were held in October and November, 1995 and a Note of Issue was filed in February, 1996. Thereafter, defendant twice moved, unsuccessfully, to strike the case from the trial calendar.

MEDIATION

The failure of the numerous conferences to result in an amicable resolution led the parties to agree to mediation. There was at least one entire day spent in attendance thereat as well as numerous prior and subsequent discussions among counsel which continued virtually until the eve of trial. Plaintiff also prepared a settlement brochure to aide the mediator.

THE TRIAL

After appearing several times in Justice Beverly Cohen's Trial Assignment Part, a jury was selected by both partners over a three day period; May 13, 14 and 15, 1997. At the same time, plaintiff's attorneys were preparing for trial by interviewing and subpoenaing potential witnesses and preparing an 18 page pre-trial memorandum. The trial itself consumed seven full days and a total of 21 witnesses were called to testify. At the trial's conclusion, plaintiff submitted a 44 page post-trial memorandum.

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