Vitalone v. City of N.Y.

• Decision Date: 12 September 2019
• Docket Number: 15 Civ. 8525 (GWG)
• Parties: Alfred VITALONE, Plaintiff, v. The CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

395 F.Supp.3d 316

Alfred VITALONE, Plaintiff,

v.The CITY OF NEW YORK, et al., Defendants.

15 Civ. 8525 (GWG)

United States District Court, S.D. New York.

Signed September 12, 2019

Vikrant Pawar, Attorney at Law, Robert Blossner, New York, NY, Edward Zaloba, The Legal Aid Society, Forest Hills, NY, for Plaintiff.

Joshua Joseph Lax, New York City Law Department, New York, NY, for Defendants.

OPINION & ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Alfred Vitalone brought this action against defendants the City of New York and seventeen police officers seeking relief pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights arising from his arrest after a traffic stop in 2014. Plaintiff's first attorney, Michael Colihan, was terminated as counsel in March 2018. Plaintiff's current attorneys — Vikrant Pawar, Robert Blossner, and Edward Zaloba (sometimes referred to collectively as "the Pawar attorneys") — took over the case in May 2018. The case settled in December 2018 pursuant to an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure. The accepted Offer of Judgment included an award of $85,000 for costs and attorney's fees.

Colihan and the Pawar attorneys now seek to have this Court resolve their dispute over the disbursement of attorney's fees resulting from the settlement.¹ The parties have consented to the disposition of this application by the undersigned under 28 U.S.C. § 636(c). For the reasons stated below, Colihan is awarded $12,701 in costs and $32,535 in fees.

I. BACKGROUND

A. Factual and Procedural History

Although the details of plaintiff's claim are not critical to deciding the fee dispute, a short summary of the background will provide some context for the attorneys' litigation efforts.

On June 24, 2014, plaintiff was driving to City Hall in Staten Island to get married when a New York City Police Department Officer initiated a traffic stop. Vitalone v. City of New York, 2018 WL 1587591, at *1 (S.D.N.Y. Mar. 27, 2018). When plaintiff asked the officer "what [he] did wrong," the officer said he had "observed the plaintiff using a cell phone while driving." Id. Eventually, the officer issued plaintiff a ticket, and when plaintiff protested, the officer demanded plaintiff exit the car. Id. Plaintiff refused because he was "frightened of" the officer. Id. The officer apparently called for back-up and several other officers eventually arrived on the scene. See id. Plaintiff exited the car after he saw the original officer had stepped away from the vehicle, but once he did so, officers "grabbed" him. Id. Plaintiff was eventually subdued, handcuffed, brought to a squad car, and taken to the local precinct. Id. at *2. He was charged with resisting arrest, obstructing governmental administration, and disorderly conduct. Id.

Plaintiff brought suit against individual officers and the City of New York under 42 U.S.C. § 1983 for excessive force, false arrest, malicious prosecution, abuse of process, failure to intervene, as well as other claims. See Second Amended Complaint, filed May 24, 2017 (Docket # 118), ¶¶ 40-90. In his March 27, 2018, opinion denying defendants' motion for summary judgment, Judge Koeltl found that the parties' "drastically different accounts of the same events [that occurred on June 24, 2014] ... represent a genuine dispute as to what happened when the plaintiff stepped out of the car and during the subsequent arrest." Vitalone, 2018 WL 1587591, at *5.

The day before the summary judgment opinion issued, March 26, 2018, Colihan was suspended from practice in the Southern District of New York for reasons unrelated to this lawsuit. See Opinion & Order dated Mar. 20, 2019 (annexed as Ex. 30 to Colihan Fees Decl.) ("App. Div. Order"). When Colihan informed Judge Koeltl of the suspension, Judge Koeltl on March 29, 2018, terminated Colihan as attorney for plaintiff and stayed the case for 60 days so plaintiff could retain new counsel. Order, filed Mar. 29, 2018 (Docket # 147). Pawar and Blossner appeared on plaintiff's behalf on May 7, 2018. (Docket ## 148-49). On May 31, 2018, Judge Koeltl ordered the parties to file pretrial materials, including motions in limine, requests to charge and proposed voir dire, by July 20, 2018, and to be ready for trial starting on September 17, 2018. Amended Civil Scheduling Order, filed May 31, 2018 (Docket # 150). These deadlines were extended a number of times in June and July as the parties engaged in settlement discussions and appeared for a settlement conference held on August 9, 2018.

The case did not settle at that time and the first pretrial submissions were ultimately filed by Pawar on August 14, 2018, and August 16, 2018. (Docket ## 170-172). Pawar made additional submissions after that date, including materials opposing the defendants' motion in limine. (Docket ## 182, 192-194).

On December 11, 2018, Judge Koeltl set a trial date of January 14, 2019 (Docket # 208), but several days later, plaintiff filed a submission indicating that a Rule 68 offer of judgment had been accepted. Notice of Acceptance, filed Dec. 17, 2018 (Docket # 210). Judgment was entered on December 17, 2018. Judgment, filed Dec. 17, 2018 (Docket # 214). The judgment reflected an award of $105,001 for plaintiff, and $85,000 for costs, expenses, and fees for plaintiff's counsel. Id.

B. The Instant Dispute

In March 2019, Pawar filed a letter requesting that the court re-open the case in light of the fact that Colihan had, after the action had settled, asserted a charging lien under state law seeking a portion of the attorney's fees from plaintiff's settlement. See Letter from Vik Pawar, Robert Blossner, and Edward Zaloba, filed Mar. 20, 2019 (Docket # 217). In an application for fees filed shortly thereafter, Pawar argued that "[w]hile it is true that Mr. Colihan did a great deal of work on this matter, we had to review each and every facet of his work in a limited period of time and prepare for trial." Declaration, filed Mar. 28, 2019 (annexed to Notice of Mot.) ("First Pawar Decl."), ¶ 9. Pawar states he "readily agreed that Mr. Colihan should receive a portion of the attorney fee[s] in this matter for his work prior to his suspension," but that he and his associates "feel that Mr. Colihan is being unreasonable in his demanding the lion's share of the fee," because while Colihan "did a great deal of work over a period of 2-3 years, by the very nature of trial practice ... we had to duplicate his labor in addition to getting ready for trial" and "spent an equal amount if not more to absorb this work within 2-3 months." Id. ¶¶ 26-27. Pawar requested that the disbursement be as follows: $15,000 in expenses to Colihan; an additional $32,500 in fees to Colihan; $17,500 to Zaloba; and $35,000 to Pawar and Blossner. Id. ¶ 31.

Colihan filed opposition papers seeking a higher percentage of the attorney's fees. See First Colihan Mem.; Colihan Decl.; Second Colihan Decl. In his brief, Colihan first pointed out that the division of fees requested by Pawar was "a math[e]matical impossibility," as the amounts exceeded the $85,000 fee recovery. First Colihan Mem. at 15. Colihan recounted his work on the case, which included attending 20 depositions, arguing that his fee should "come to a minimum of $108,225 and a high of $124,875" based on an hourly rate of $325 or $375. Id. at 20-21. In the end, Colihan states that he performed "90% of the services" in this action. Id. at 21.

On April 26, 2019, the Court held a conference attended by Colihan, Pawar, Blossner, and a lawyer representing defendants. See Transcript of Proceedings from Apr. 26, 2019, filed June 25, 2019 (Docket # 248) ("Apr. 26 Conference Tr."), at 2. At the conference, the Court stated that because Colihan was asserting a charging lien under New York Judiciary Law § 475, the parties would need to address certain factors missing from their initial papers and set forth their arguments regarding those factors in additional submissions. Id. at 4-5. The Court also inquired as to the nature of the billing records the attorneys had kept. Colihan said he kept contemporaneous time records, which went back three years and were "messy." Id. at 5-6.² Blossner stated he did not keep such records, though he understood that Zaloba "may have." Id. at 6. In light of these statements, the Court explained that it would allow counsel an additional opportunity to submit documentation supporting their applications, including contemporaneous time records Id. at 7.

The parties subsequently filed their supplemental submissions. In his supplemental memorandum, Colihan maintained he was entitled to 90% of the fees recovered based on New York Judiciary Law § 475 and quantum meruit, or $76,500. See Colihan Fees Mem. at *6-10.³

For his part, Pawar argues Colihan's application is deficient because (1) Colihan does not have a retainer agreement with plaintiff or documentation indicating plaintiff ever assigned his attorney's fees to Colihan, Pawar Mem. at 7; (2) Colihan is in violation of 22 NYCRR § 1215.1 because he has not shown the existence of a letter of engagement regarding his representation of plaintiff, id. at 7-8; and (3) even if those failures are ignored, Colihan's "actions (or inactions) in the litigation should be factored into a downward departure of the fees and hourly rate he seeks because of his performance," id. at 8-11. Pawar and his colleagues also filed sworn declarations in support of their fee applications indicating that Pawar's application was based on contemporaneous time records, that Blossner's application was based on "reconstructed time records," and that Zaloba's application was based on "contemporaneous/reconstructed time records." Second Pawar Decl. ¶¶ 2-4; see annexed exhibits 2, 3, 3a, 4, 4a to Second Pawar Decl.

Following receipt of these submissions, and because none of the attorneys other than Pawar described how their time records were maintained or reconstructed, the Court...