NYP Holdings, Inc. v New York City Police Dept. 2024 NY Slip Op 31675(U) May 13, 2024 Supreme Court, New York County Docket Number: Index No. 159132/2021 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 159132/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/13/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 159132/2021 NYP HOLDINGS, INC.,CRAIG MCCARTHY, MOTION DATE 05/10/2024 Petitioner, MOTION SEQ. NO. 003 -v- NEW YORK CITY POLICE DEPARTMENT, and DERMOT F. SHEA, in his official capacity as Commissioner of the New York City Police DECISION + ORDER ON Department, POLICE BENEVOLENT ASSOCIATION OF MOTION THE CITY OF NEW YORK,
Respondents. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82 were read on this motion to/for ATTORNEY - FEES .
Petitioners’ motion for legal fees is decided as described below.
Background
In this Freedom of Information Law (“FOIL”) proceeding, petitioners sought police
disciplinary records in connection with 144 separate FOIL requests. This Court granted the
petition, in part, and directed respondent the New York City Police Department (“NYPD”) to
turn over the relevant records (NYSCEF Doc. No. 50). The Court, however, denied petitioners’
demand for legal fees based on an Appellate Division, Fourth Department case (id. at 8-9).
The Appellate Division, First Department reversed with respect to the legal fees issue and
directed that this Court calculate the reasonable legal fees and costs (NYP Holdings, Inc. v New
York City Police Dept., 220 AD3d 487, 489 [1st Dept 2023]).
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Petitioners now move for reasonable legal fees and insist that they are due $290,575.01.
They explain that this proceeding has involved extensive work as it involved 144 FOIL requests.
Petitioners observe that although the FOIL requests were filed in June 2020, NYPD denied their
requests at every stage, save for a single heavily redacted document produced in June 2021. They
point out that respondent the Police Benevolent Association (“PBA”) appealed this Court’s
initial ruling as did the NYPD (although the NYPD later withdrew its appeal but only after
petitioners had opposed). Petitioners maintain that the PBA has filed a motion for leave to appeal
for the Court of Appeals and they have filed opposition to that application.
Petitioners observe that they seek a discounted hourly rated for their legal work and that
the number of hours they expended were reasonable. They explain that they expended hours
pursuing agency appeals of the FOIL requests, commencing this proceeding and for the
aforementioned appeal.
In opposition, NYPD contends that the amount charged is not reasonable. It argues that
petitioners are not entitled to recover for any fees incurred for arguments advanced by the PBA,
an intervenor in this proceeding, for which the NYPD did not join. That is, NYPD claims that
the bills submitted by petitioners do not separate fees incurred for work incurred in response to
the PBA’s arguments as opposed to those argued solely by the NYPD. It claims that a hearing is
required to isolate these fees.
NYPD also claims that petitioners are not entitled to seek fees for bringing this
application as that constitutes fees on fees. It adds that the hourly rates charged and the hours
expended were not reasonable. NYPD claims that it should only have to pay $95,000.
In reply, petitioners stress that they applied additional discounted rates to the already
negotiated hourly rates, meaning that they charged significantly less than their standard billing
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amount. They claim that these rates are therefore reasonable. With respect to the hours
expended, petitioners point to the complexity of the issues in this proceeding and that NYPD
obtained eight months of extensions only to abandon nearly every basis initially cited to justify
withholding the records.
Discussion
As a preliminary finding, the Court holds that a hearing is required to assess the
reasonableness of the fees demanded, including both the hourly rates and the hours charged. “In
determining reasonable compensation for an attorney, the court must consider such factors as the
time, effort, and skill required; the difficulty of the questions presented; counsel's experience,
ability, and reputation; the fee customarily charged in the locality; and the contingency or
certainty of compensation. While a hearing is not required in all circumstances, the court must
possess sufficient information upon which to make an informed assessment of the reasonable
value of the legal services rendered” (People's United Bank v Patio Gardens III, LLC, 143 AD3d
689, 691, 38 NYS3d 262 [2d Dept 2016] [internal quotations and citations omitted]).
A hearing is required here so that this Court can properly evaluate the bills and rates
charged by petitioners.
However, in this Court’s view, it must make additional findings regarding the scope of
this hearing. Critically, this Court must consider whether or not petitioners are entitled to charge
for fees incurred as a result of arguments raised by an intervenor. The Court finds that
petitioners are entitled to seek such fees and need not separate out fees incurred for each
respondent.
As petitioners point out, there are very few cases concerning this issue—whether a
successful petitioner in a FOIL proceeding can recover reasonable legal fees where some amount
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of those fees was incurred due to arguments raised by an intervenor. However, they cite to a
federal FOIA case in which a federal judge awarded legal fees incurred largely due to efforts
advanced by an intervenor (Detention Watch Network v United States Immigration and Customs
Enf't, 14 CIV. 583 (LGS), 2019 WL 442453, at *4 [SD NY 2019]). As the federal court held,
“Because the Government did not acquiesce to Plaintiffs' claims during the pendency of the
appeals -- and instead stood by while Defendant-Intervenors sought to defend the Government's
actions on appeal -- Plaintiffs' appellate work was made necessary by the Government's
opposition” (id. [internal quotations and citation omitted]).
Similarly, here, NYPD let the PBA advance arguments that sought to defend NYPD’s
decision not to disclose these records both before this Court and before the First Department (and
apparently before the Court of Appeals).
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NYP Holdings, Inc. v New York City Police Dept. 2024 NY Slip Op 31675(U) May 13, 2024 Supreme Court, New York County Docket Number: Index No. 159132/2021 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 159132/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/13/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 159132/2021 NYP HOLDINGS, INC.,CRAIG MCCARTHY, MOTION DATE 05/10/2024 Petitioner, MOTION SEQ. NO. 003 -v- NEW YORK CITY POLICE DEPARTMENT, and DERMOT F. SHEA, in his official capacity as Commissioner of the New York City Police DECISION + ORDER ON Department, POLICE BENEVOLENT ASSOCIATION OF MOTION THE CITY OF NEW YORK,
Respondents. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82 were read on this motion to/for ATTORNEY - FEES .
Petitioners’ motion for legal fees is decided as described below.
Background
In this Freedom of Information Law (“FOIL”) proceeding, petitioners sought police
disciplinary records in connection with 144 separate FOIL requests. This Court granted the
petition, in part, and directed respondent the New York City Police Department (“NYPD”) to
turn over the relevant records (NYSCEF Doc. No. 50). The Court, however, denied petitioners’
demand for legal fees based on an Appellate Division, Fourth Department case (id. at 8-9).
The Appellate Division, First Department reversed with respect to the legal fees issue and
directed that this Court calculate the reasonable legal fees and costs (NYP Holdings, Inc. v New
York City Police Dept., 220 AD3d 487, 489 [1st Dept 2023]).
159132/2021 NYP HOLDINGS, INC. ET AL vs. NEW YORK CITY POLICE DEPARTMENT ET AL Page 1 of 6 Motion No. 003
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Petitioners now move for reasonable legal fees and insist that they are due $290,575.01.
They explain that this proceeding has involved extensive work as it involved 144 FOIL requests.
Petitioners observe that although the FOIL requests were filed in June 2020, NYPD denied their
requests at every stage, save for a single heavily redacted document produced in June 2021. They
point out that respondent the Police Benevolent Association (“PBA”) appealed this Court’s
initial ruling as did the NYPD (although the NYPD later withdrew its appeal but only after
petitioners had opposed). Petitioners maintain that the PBA has filed a motion for leave to appeal
for the Court of Appeals and they have filed opposition to that application.
Petitioners observe that they seek a discounted hourly rated for their legal work and that
the number of hours they expended were reasonable. They explain that they expended hours
pursuing agency appeals of the FOIL requests, commencing this proceeding and for the
aforementioned appeal.
In opposition, NYPD contends that the amount charged is not reasonable. It argues that
petitioners are not entitled to recover for any fees incurred for arguments advanced by the PBA,
an intervenor in this proceeding, for which the NYPD did not join. That is, NYPD claims that
the bills submitted by petitioners do not separate fees incurred for work incurred in response to
the PBA’s arguments as opposed to those argued solely by the NYPD. It claims that a hearing is
required to isolate these fees.
NYPD also claims that petitioners are not entitled to seek fees for bringing this
application as that constitutes fees on fees. It adds that the hourly rates charged and the hours
expended were not reasonable. NYPD claims that it should only have to pay $95,000.
In reply, petitioners stress that they applied additional discounted rates to the already
negotiated hourly rates, meaning that they charged significantly less than their standard billing
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amount. They claim that these rates are therefore reasonable. With respect to the hours
expended, petitioners point to the complexity of the issues in this proceeding and that NYPD
obtained eight months of extensions only to abandon nearly every basis initially cited to justify
withholding the records.
Discussion
As a preliminary finding, the Court holds that a hearing is required to assess the
reasonableness of the fees demanded, including both the hourly rates and the hours charged. “In
determining reasonable compensation for an attorney, the court must consider such factors as the
time, effort, and skill required; the difficulty of the questions presented; counsel's experience,
ability, and reputation; the fee customarily charged in the locality; and the contingency or
certainty of compensation. While a hearing is not required in all circumstances, the court must
possess sufficient information upon which to make an informed assessment of the reasonable
value of the legal services rendered” (People's United Bank v Patio Gardens III, LLC, 143 AD3d
689, 691, 38 NYS3d 262 [2d Dept 2016] [internal quotations and citations omitted]).
A hearing is required here so that this Court can properly evaluate the bills and rates
charged by petitioners.
However, in this Court’s view, it must make additional findings regarding the scope of
this hearing. Critically, this Court must consider whether or not petitioners are entitled to charge
for fees incurred as a result of arguments raised by an intervenor. The Court finds that
petitioners are entitled to seek such fees and need not separate out fees incurred for each
respondent.
As petitioners point out, there are very few cases concerning this issue—whether a
successful petitioner in a FOIL proceeding can recover reasonable legal fees where some amount
159132/2021 NYP HOLDINGS, INC. ET AL vs. NEW YORK CITY POLICE DEPARTMENT ET AL Page 3 of 6 Motion No. 003
3 of 6 [* 3] INDEX NO. 159132/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/13/2024
of those fees was incurred due to arguments raised by an intervenor. However, they cite to a
federal FOIA case in which a federal judge awarded legal fees incurred largely due to efforts
advanced by an intervenor (Detention Watch Network v United States Immigration and Customs
Enf't, 14 CIV. 583 (LGS), 2019 WL 442453, at *4 [SD NY 2019]). As the federal court held,
“Because the Government did not acquiesce to Plaintiffs' claims during the pendency of the
appeals -- and instead stood by while Defendant-Intervenors sought to defend the Government's
actions on appeal -- Plaintiffs' appellate work was made necessary by the Government's
opposition” (id. [internal quotations and citation omitted]).
Similarly, here, NYPD let the PBA advance arguments that sought to defend NYPD’s
decision not to disclose these records both before this Court and before the First Department (and
apparently before the Court of Appeals). NYPD only advanced a “burdensome” argument
before this Court but PBA raised all manner of arguments, including a relatively complex issue
involving whether or not a recently passed statute had retroactive effect.
The fact is that the NYPD did not oppose the PBA’s intervention and, for some reason, it
decided to abandon arguments that the PBA advanced on behalf of the NYPD. In doing so,
NYPD took the chance that petitioners would be successful under a statutory scheme that
contemplates the awarding of legal fees should a petitioner prevail.
If NYPD did not agree with PBA’s arguments, it could have certainly given the
documents to petitioner rather than let the PBA offer substantial opposition. Instead, it stood by
and allowed PBA to make those arguments on its behalf. NYPD cannot reap the benefit of
having another entity make arguments on its behalf and cause petitioners to incur legal fees only
to then assert it need not pay those fees. In this Court’s view, that runs contrary to the purpose of
the legal fees provision under FOIL. “The award of attorney's fees is intended to create a clear
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deterrent to unreasonable delays and denials of access and thereby encourage every unit of
government to make a good faith effort to comply with the requirements of FOIL” (Matter of S.
Shore Press, Inc. v Havemeyer, 136 AD3d 929, 931, 25 NYS3d 303 [2d Dept 2016] [internal
quotations and citations omitted]).1
If the Court were to deny petitioners the right to recover legal fees incurred as a result of
the PBA’s actions, then it would, in this Court’s view, create a glaring loophole. It would permit
agencies to find intervenors to make arguments on their behalf in FOIL proceedings and force
petitioners to incur legal fees only to be forbidden from seeking those fees based solely on the
technicality that the agency did not make those arguments. As noted above, NYPD did not
oppose the PBA’s motion to intervene or make any efforts to oppose the arguments advanced by
the PBA. And they initially appealed this Court’s decision, only to later withdraw it. This Court
cannot allow NYPD and PBA to, essentially, wink at each other at petitioner’s expense.
The Court also grants petitioners’ demand for the fees incurred in this motion. While
NYPD claims that petitioners are not entitled to recover fees on fees, this Court disagrees. NYPD
did not cite any binding caselaw for this proposition. Moreover, this Court finds that requiring a
party to make a motion for fees typically reduces the overall fees incurred. Sometimes, parties
reach a settlement prior to submission of the motion or the Court is able to determine the amount
to be awarded without holding a hearing, an obviously more expensive endeavor. But the fact is
that the statute contemplates the recovery of reasonable litigation fees incurred in a proceeding
(Public Officers Law § 89[4][c]); the proceeding necessarily involves the efforts to obtain those
fees.
1 No one argues that the PBA must pay the requested legal fees and so a decision about apportioning fees amongst the respondents is not ripe for review. 159132/2021 NYP HOLDINGS, INC. ET AL vs. NEW YORK CITY POLICE DEPARTMENT ET AL Page 5 of 6 Motion No. 003
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For this same reason, petitioners will be entitled to recover legal fees incurred in the
preparation for the hearing and for the hearing itself (provided that petitioners substantially
prevail in the hearing). NYPD has, as it is absolutely entitled to do, raised issues about the
reasonableness of the amount sought by petitioners and has demanded a hearing. Petitioners
need not be required to prepare for, and hold, such a hearing without the ability to recover for the
time expended (assuming that petitioners can show their demanded amount is reasonable).
Accordingly, it is hereby
ORDERED that petitioners’ motion for legal fees shall be determined at a hearing in
accordance with the findings above. That hearing shall take place in person on June 6, 2024 at 10
a.m.
5/13/2024 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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