Capital One, N.A. v. Auto Gallery Motors, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CAPITAL ONE, N.A., d/b/a CAPITAL ONE

AUTO FINANCE,

Plaintiff, MEMORANDUM & ORDER

2:16-CV-6534 (PKC) (SIL)

- against -

AUTO GALLERY MOTORS, LLC,

SMITHTOWN CHEVROLET, LLC, and

DENNIS SCHWARTZ,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Capital One Auto Finance brings this suit against Defendants Auto Gallery,

Smithtown Chevrolet, and Dennis Schwartz, alleging breach of contract and fraudulent

misrepresentation. On September 30, 2019, the Court granted in part and denied in part Plaintiff’s

unopposed motion for summary judgment against Auto Gallery and awarded Plaintiff damages

and attorneys’ fees (“September 2019 Order”). See generally Capital One, N.A. v. Auto Gallery

Motors, LLC, No. 16-CV-6534 (PKC) (SIL), 2019 WL 4805253 (E.D.N.Y. Sept. 30, 2019). The

Court deferred its judgment, however, because of the absence of information necessary to calculate

and verify the award. Id. at *6. On October 31, 2019, in accordance with the Court’s order,

Plaintiff submitted affidavits in support of its request. (Plaintiff’s Affidavit, Dkt. 54.) Auto

Gallery has failed to respond, which was due on November 13, 2019. On November 27, 2019,

Plaintiff submitted a supplemental affidavit regarding its attorneys’ fees request in response to the

Court’s November 20, 2019 Order. (Plaintiff’s Supplemental Affidavit (“Pl.’s Supp.”), Dkt. 55.)

For the reasons stated below, the Court finds that Plaintiff is entitled to damages in the amount of

$164,482.40 and attorneys’ fees in the amount of $149,857.05.

DISCUSSION

I. Damages

In its September 2019 Order, the Court found that Plaintiff is entitled to damages, and

directed Auto Gallery to either repurchase the fifteen Receivables specified in Plaintiff’s motion

for summary judgment or pay the outstanding indebtedness due on the Receivables as provided in

the agreement between the parties (“Dealer Agreement”). Capital One, 2019 WL 4805253, at *5–

6. Plaintiff represents that Auto Gallery is not in the business of automobile financing and

repurchase of the Receivables would be impracticable. (Plaintiff’s Affidavit, Dkt. 54, ¶ 5.) The

Court agrees and finds monetary damages appropriate in this case. See Ace Sec. Corp. Home

Equity Loan Tr., Series 2007-HE3 ex rel. HSBC Bank USA, Nat. Ass’n v. DB Structured Prod.,

Inc., 5 F. Supp. 3d 543, 554 (S.D.N.Y. 2014) (finding money damages in lieu of repurchase

appropriate and noting that “where the granting of equitable relief appears to be impossible or

impracticable, equity may award damages in lieu of the desired equitable remedy”).

The Dealer Agreement provides the calculation for the repurchase price as “equal to the

total outstanding indebtedness then currently due under the terms of said Receivable.” (Dealer

Agreement (Exhibit 1), Dkt. 48-4, at 3.) In the September 2019 Order, the Court agreed that this

calculation was an adequate method for calculating damages in this case, but found that a single

affidavit was insufficient to establish damages. Capital One, 2019 WL 4805253, at *6. In

accordance with the Court’s order, Plaintiff submitted the affidavit of Joseph Allison, a Capital

One employee responsible for overseeing dealer monitoring, and transaction history reports for

each Receivable. (Affidavit of Joseph Allison, Dkt. 54-1, ¶¶ 3−4; see also id. at ECF1 5−52.) The

1 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

Court is satisfied with Plaintiff’s submission and finds that the total outstanding indebtedness

currently due is $164,482.40. Therefore, Plaintiff is entitled to $164,482.40 in damages.

II. Attorneys’ Fees

In the September 2019 Order, the Court held that Plaintiff was entitled to attorneys’ fees

as provided in the Dealer Agreement. Capital One, 2019 WL 4805253, at *6. Plaintiff now seeks

attorneys’ fees in the amount of $261,784.65.2

A. Legal Standard

In the Second Circuit, a “presumptively reasonable fee” must be calculated using the

“lodestar,” i.e., multiplication of a reasonable hourly rate by the reasonable number of hours

required by the case. Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014); Millea v.

Metro–N. R.R., 658 F.3d 154, 166 (2d Cir. 2011). District courts have broad discretion, using

“their experience with the case, as well as their experience with the practice of law, to assess the

reasonableness” of each component of a fee award. Fox Indus., Inc. v. Gurovich, No. 03-CV-5166

(TCP) (WDW), 2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005) (quoting Clarke v. Frank, 960

F.2d 1146, 1153 (2d Cir. 1992)). Reasonable hourly rates are informed in part by the rates

“prevailing in the community for similar services by lawyers of reasonably comparable skill,

experience, and reputation.” Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997) (quoting

Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). A district court should “bear in mind all of the

case-specific variables that [the Second Circuit] and other courts have identified as relevant to the

reasonableness of [attorneys’] fees in setting a reasonable hourly rate.” Arbor Hill Concerned

Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008) (emphasis

2 The total gross fees charged by McGuireWoods were $291,154.00 and were discounted

to $261,784.65 under the agreement between Plaintiff and its attorneys. (See Certification of Philip

A. Goldstein, Dkt. 54-2, ¶¶ 5−6.)

omitted). A “presumptively reasonable fee boils down to ‘what a reasonable, paying client would

be willing to pay,’ given that such a party wishes ‘to spend the minimum necessary to litigate the

case effectively.’” Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (citation

omitted).

A fee applicant bears the burden of demonstrating the hours expended and the nature of

the work performed through contemporaneous time records that describe with specificity the

nature of the work done, the hours, and the dates. N.Y.S. Ass’n for Retarded Children, Inc. v.

Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). If a court finds that claimed hours are “excessive,

redundant, or otherwise unnecessary,” it should exclude those hours in calculating a fee award.

Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); Quaratino v. Tiffany & Co., 166 F.3d 422, 426

n.6 (2d Cir. 1999). Likewise, if claimed hours are insufficiently documented, “the court may

decrease the award, either by eliminating compensation for unreasonable hours or by making

across-the-board percentage cuts in the total hours for which reimbursement is sought.” Wise v.

Kelly, 620 F. Supp. 2d 435, 442 (S.D.N.Y. 2008) (citing Hensley, 461 U.S. at 434; Kirsch v. Fleet

Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998); N.Y.S. Ass’n for Retarded Children, 711 F.2d at

1146).

B. Reasonableness of Hourly Rates

Plaintiff is represented by attorneys with the law firm of McGuireWoods LLP. Plaintiff

seeks attorneys’ fees for work performed by four partners/counsels, five associates/staff attorneys,

six paralegals, and four non-attorney, non-paralegal staff members, as shown in the table below.

(See Pl.’s Supp., Dkt. 55.)3

Name Position Hours Worked Fees Requested De Facto Hourly Rate

Phillip Chang Partner 298.9 $152,973 $512

3 Each attorney’s level of experience is set forth infra.

Bryan Fratkin Partner 0.7 $403 $576

Philip Goldstein Counsel 14.7 $7,618 $518

Seth Schaeffer Partner 0.2 $118 $590

Amanda Goldstein Associate 7.0 $2,100 $300

Anthony McGavran Associate 5.0 $2,225 $445

James McNichol Associate 171.8 $66,444 $387

Michael Stark Associate 60.6 $21,210 $350

Jennifer Neuner Staff Attorney 33.2 $7,470 $225

Connor Symons Paralegal 144.1 $25,222 $175

Bonnie Powell Paralegal 2.4 $420 $175

Nicolas Treviso Paralegal 4.6 $827 $180

Candy Guerrero Paralegal 18.8 $3291.50 $175

Jacqueline Thomas Paralegal 0.7 $122.50 $175

David Sclafani Paralegal 0.8 $140 $175

Victoria Levy Librarian 1.9 $142.50 $75

Gregory Stoner Library Manager 1.0 $75 $75

Emily Morrison Case Assistant 4.0 $300 $75

Cynthia Smith Librarian 0.7 $52.50 $75

“Courts have found that the prevailing hourly rates in this district are generally between

$300 and $400 for law firm partners, $200 to $300 for senior associates, and $100 to $200 for

junior associates.” LG Capital Funding, LLC v. 5Barz Int’l, Inc., No. 16-CV-2752 (KAM) (JO),

2019 WL 3082478, at *2 (E.D.N.Y. July 15, 2019); see Johnson v. City of New York, No. 11-CV-

6176 (ENV) (CLP), 2016 WL 590457, at *5 (E.D.N.Y. Feb. 11, 2016) (“As benchmarks, judges

of this Court have awarded between $300 and $450 for partners in large law firms and for attorneys

with extensive experience with the particular issues of a case; between $200 and $325 for senior

associates and for attorneys with limited experience with the particular issues involved in the

subject case; and $100-$200 for junior associates, or attorneys with little or no experience with the

particular issues.”). “Complex cases of long duration litigated by well-experienced counsel

warrant a court to consider a comparatively high hourly rate, while less complex matters, even if

litigated by experienced counsel, support a lower rate.” Centro de la Comunidad Hispana de

Locust Valley v. Town of Oyster Bay, No. 10-CV-2262 (DRH) (AYS), 2019 WL 2870721, at *6

(E.D.N.Y. June 18, 2019), report and recommendation adopted, No. 10-CV-2262 (DRH), 2019

WL 2869150 (E.D.N.Y. July 3, 2019); see, e.g., McLaughlin v. IDT Energy, No. 14-CV-4107

(ENV) (RML), 2018 WL 3642627, at *17 (E.D.N.Y. July 30, 2018) (awarding in a class action

case the hourly rates of “$550 for partners/equity owners with more than thirty years of experience,

$500 for partners/equity owners with more than fifteen years of experience, $450 for

partners/equity owners with more than ten years of experience, $400 for senior

associates/associates with more than ten years of experience, $350 for senior associates/associates

with six to nine years of experience, $300 for associates with three to five years of experience,

$250 for associates with fewer than three years of experience, and $75 for

paralegals/administrative assistants”)

The hourly rates Plaintiff seeks are at the higher end of the range typically awarded to

attorneys in this district, given the straightforward nature of this case. While some cases may be

particularly complicated and warrant a higher amount, the claims in this case are not complex,

arising out of Defendant Auto Gallery’s misrepresentations in loan applications submitted to

Plaintiff in breach of the Dealer Agreement. Indeed, these claims, based primarily on state contract

law and involving no specialized legal expertise, were largely resolved by an unopposed summary

judgment motion. See Feltzin v. Union Mall LLC, 393 F. Supp. 3d 204, 212–13 (E.D.N.Y. 2019)

(awarding $425 for a partner with expertise and $325 for a partner without specific expertise in a

case where “the nature of the work in this case was not sufficiently complex or difficult to litigate

as to justify a rate at the high end of the range of fees typically awarded” (internal quotation marks

and citations omitted)); cf. U.S. ex rel. Doe v. Acupath Labs., Inc., No. 10-CV-4819, 2015 WL

1293019, at *10 (E.D.N.Y. Mar. 19, 2015) (finding $600 appropriate for a partner with over 25

years of experience and knowledge of a “specialized area of law” in qui tam litigation).

Therefore, considering the nature of this case and the attorneys’ experience, the Court finds

the following rates to be reasonable for partners/counsels: $450 for partners/counsels with more

than twenty years of experience, $425 for partners/counsels with more than fifteen years of

experience, and $400 for partners/counsels with more than ten years of experience. See Hormel

Foods Sales, LLC v. Ship Side Food Serv., Inc., No. 16-CV-1595 (LDH) (PK), 2018 WL 3202076,

at *2 (E.D.N.Y. Mar. 23, 2018) ($450 for a partner with twenty years of experience); Almond v.

PJ Far Rockaway, Inc., No. 15-CV-6792 (FB) (JO), 2018 WL 922184, at *1–2 (E.D.N.Y. Feb. 15,

2018) ($450 for a partner with seventeen years of experience); Houston v. Cotter, 234 F. Supp. 3d

392, 402–03 (E.D.N.Y. 2017) ($400 for a partner in a large law firm). For associates, the Court

awards $300 for associates with more than eight years of experience, $275 for associates with

more than five years of experience, and $250 for associates with fewer than five years of

experience. See LG Capital Funding, 2019 WL 3082478, at *3 ($250 for a fourth-year associate);

Hormel Foods Sales, 2018 WL 3202076, at *3 ($325 for an associate with more than ten years of

experience); Sass v. MTA Bus Co., 6 F. Supp. 3d 238, 263 (E.D.N.Y. 2014) ($275 for an associate

with seven years of experience and $225 for an associate with four years of experience). Regarding

Plaintiff’s request for an hourly rate of $225 for a staff attorney with more than 20 years of

experience, the Court finds that to be reasonable. See Shim v. Millennium Grp., No. 08-CV-4022

(FB) (VVP), 2010 WL 2772493, at *3–4 (E.D.N.Y. June 21, 2010) ($250 for a staff attorney),

report and recommendation adopted, No. 08-CV-4022 (FB) (VVP), 2010 WL 2772342 (E.D.N.Y.

July 12, 2010); Jin v. Pac. Buffet House, Inc., No. 06-CV-579 (VVP), 2010 WL 2653334, at *3

(E.D.N.Y. June 25, 2010) (noting that “between $240 and $270” was reasonable for a staff

attorney); see also McGreevy v. Life Alert Emergency Response, Inc., 258 F. Supp. 3d 380, 390

(S.D.N.Y. 2017) ($200 for staff attorneys). For paralegals, the Court finds an hourly rate of $100

appropriate for those with significant experience and an hourly rate of $70 appropriate for those

with less or minimal experience. See Cohetero v. Stone & Tile, Inc., No. 16-CV-4420 (KAM)

(SMG), 2018 WL 565717, at *4 (E.D.N.Y. Jan. 25, 2018) (“In recent cases in this district, the

court has found hourly rates ranging from . . . $70 to $100 for paralegal assistants to be

reasonable.”); see also Feltzin, 393 F. Supp. 3d at 214 (finding $70, “the lowest in the applicable

range,” appropriate for an unnamed paralegal). Lastly, the Court finds Plaintiff’s request for an

hourly rate of $75 for librarians and case assistants to be reasonable. See Amerisource Corp. v. Rx

USA Int’l Inc., No. 02-CV-2514 (JMA), 2010 WL 2160017, at *11 (E.D.N.Y. May 26, 2010)

(finding $80 reasonable for support staff).

Based on Plaintiff’s representations regarding the attorneys’ experience, the Court sets the

following hourly rates: $450 for Bryan Fratkin, a partner with twenty-four years of experience

(Pl.’s Supp., Dkt. 55, ¶ 2); $425 for Philip Goldstein, a counsel with eighteen years of experience

(id. at ¶ 5); $400 for Phillip Chang, a partner with twelve years of experience (id. at ¶ 1), and Seth

Schaeffer, a partner with fifteen years of experience (id. at ¶ 9); $300 for Anthony McGavran, an

associate with nine years of experience (id. at ¶ 6); $275 for James McNichol, an associate with

six years of experience (id. at ¶ 7), and Michael Stark, an associate with seven years of experience

(id. at ¶ 10); $250 for Amanda Goldstein, an associate with five years of experience (id. at ¶ 4);

$225 for Jennifer Neuner, a staff attorney with over twenty years of experience (id. at ¶ 8); $100

for Bonnie Powell, Candy Guerrero, Jacqueline Thomas, and David Sclafani, who are paralegals

with over ten years of experience (id. at ¶¶ 12, 14–16); $70 for Connor Symons and Nicolas

Treviso, who were paralegals with less than five years of experience at the time (id. at ¶ 11, 13);

and $75 for the rest of the support staff (id. at ¶ 17).

C. Reasonableness of Hours Billed

Plaintiff submitted contemporaneous billing records setting forth the dates and amount of

time during which services were rendered, the fees charged, and a description of the services

performed. (See Certification of Philip A. Goldstein, Dkt. 54-2, at ECF 30−47.) The records detail

771.1 hours of work performed by nineteen lawyers and staff members over two years.

Before delving into the time records, the Court first notes that Plaintiff sought to recover

damages based on misrepresentations relating to twenty-nine Receivables, fifteen of which were

the subject of the partial summary judgment order and amounted to $164,482.40. While there are

fourteen Receivables remaining and more recovery is possible, the attorneys’ fees sought by

Plaintiff in the amount of $261,784.65 would be plainly unacceptable to a paying client, if for no

other reason than that the fees exceed the recovery amount by more than half.4 See Alicea v. City

of New York, 272 F. Supp. 3d 603, 611 (S.D.N.Y. 2017) (“No reasonable attorney would have

billed a paying client in this type of case the hours for which the Firm seeks compensation,

especially at the rates charged—a client would not pay and would negotiate some sort of fee

reduction.”).

Based on its review of a sample of the submitted billing records, the Court finds a pattern

of excessive hours spent on various tasks. See Marion S. Mishkin Law Office v. Lopalo, 767 F.3d

144, 149 (2d Cir. 2014) (“[W]hen reviewing voluminous fee applications, it is unrealistic to expect

courts to evaluate and rule on every entry in an application . . . .” (internal quotation marks and

citations omitted)). For instance, Plaintiff’s letter motion to compel discovery, filed on December

19, 2017, was a little over two pages. (See Plaintiff’s motion to compel, Dkt. 26.) Yet, by the

Court’s calculation, Plaintiff’s counsel spent approximately 13.5 hours (4.5 hours by a partner, 7.2

hours by a senior associate, and 1.8 hours by a staff attorney) drafting and reviewing the letter

motion, excluding the time spent on compiling the exhibits. (See Certification of Philip A.

4 The difference between the claimed attorneys’ fees of $261,784.65 and the damages

award of $164,482.40 is approximately $97,000, which represents 59% of the damages recovered

for Plaintiff relating to the fifteen Receivables.

Goldstein, Dkt. 54-2, at ECF 34−35.) The December 19 letter asserts the straightforward

proposition that third parties should be compelled to produce relevant materials and cites to four

cases. (See Plaintiff’s motion to compel, Dkt. 26.) Similarly, Plaintiff’s second letter motion to

compel discovery, filed on February 16, 2018, was four pages, excluding exhibits, and yet, a

partner and two senior associates spent, respectively, approximately 1.3 hours, 6.7 hours, and 2.9

hours preparing the letter motion. (See Plaintiff’s motion to compel, Dkt. 30; Certification of

Philip A. Goldstein, Dkt. 54-2, at ECF 37.) Again, the letter asserts the straightforward argument

that Auto Gallery failed to produce relevant documents and cites to five cases discussing the

general standard for motions to compel. The Court is further dismayed by the firm’s practice of

staffing three attorneys on each motion. See Ng v. King Henry Realty, Inc., No. 16-CV-13 (PAE)

(JCF), 2016 WL 6084074, at *7 (S.D.N.Y. Oct. 7, 2016) (“While having two attorneys research

and participate in drafting a brief is a common practice and therefore not necessarily duplicative,

three to four is excessive given the straightforward nature of this case.” (internal quotation marks

and citation omitted)). The number of hours expended on these motions therefore should be

reduced. See Rich Prod. Corp. v. Impress Indus., Inc., No. 05-CV-187S (WMS), 2008 WL

203020, at *3 (W.D.N.Y. Jan. 23, 2008) (reducing claim for 7.6 hours to 3 hours for a simple

motion to compel); Marano v. Aaboe, No. 05-CV-9375 (BSJ) (RLE), 2007 WL 3195156, at *4

(S.D.N.Y. Oct. 29, 2007) (reducing claim for 16 hours to 3 hours for a motion to compel without

complex legal analysis).

The Court also calculated the number of hours one partner spent preparing for the

deposition of Auto Gallery. Along with associates also billing approximately 14.6 hours for this

deposition preparation, the partner alone billed approximately 50.4 hours to prepare for and

conduct a six-hour deposition. (Certification of Philip A. Goldstein, Dkt. 54-2, at ECF 40−43.)

The Court, familiar with the facts of this case, finds the hours were excessive and should be

reduced. See Official Comm. of Unsecured Creditors of Exeter Holdings, Ltd. v. Haltman, No. 13-

CV-5475 (JS) (AKT), 2018 WL 7291396, at *13 (E.D.N.Y. Aug. 24, 2018) (finding that “spending

approximately 125 attorney hours to prepare for two [expert] depositions is entirely excessive”

and imposing a 75% reduction); Marshall v. Randall, No. 10-CV-2714 (JBW) (VVP), 2013 WL

12347282, at *7 (E.D.N.Y. Jan. 24, 2013) (reducing claim for 37.85 hours to 20 hours for

depositions that took five hours to conduct).

The pattern of excessive hours continues with the motion for partial summary judgment.

By the Court’s calculation, in addition to others who also billed for this task, a senior associate

spent approximately 81.6 hours drafting and revising the motion for partial summary judgment

and a partner spent 35 hours reviewing the draft. (Certification of Philip A. Goldstein, Dkt. 54-2,

at ECF 42−47.) This is an unreasonable amount of time for experienced attorneys to spend on a

motion that did not raise complex legal issues or involve a complicated factual record, and should

be reduced. See Standish v. Fed. Express Corp. Long Term Disability Plan, No. 15-CV-6226

(MAT), 2017 WL 874689, at *3 (W.D.N.Y. Mar. 6, 2017) (finding 116.2 hours billed for a

summary judgment motion excessive and reducing it to 85 hours); Sheet Metal Workers’ Nat.

Pension Fund v. Coverex Corp. Risk Sols., No. 09-CV-121 (SJF) (ARL), 2015 WL 3444896, at

*16 (E.D.N.Y. May 28, 2015) (finding approximately 40 hours spent on drafting a motion for

partial summary judgment excessive and imposing a 30% reduction).

“It is common practice in this Circuit to reduce a fee award by an across-the-board

percentage where a precise hour-for-hour reduction would be unwieldy or potentially inaccurate.”

Alicea, 272 F. Supp. 3d at 612 (internal quotation marks and citation omitted); see Marion S.

Mishkin Law Office, 767 F.3d at 150 (“[A district court may] exercise its discretion and use a

percentage deduction as a practical means of trimming fat [from a fee application].” (internal

quotation marks and citations omitted)). Therefore, the Court finds that a 30% across-the-board

reduction in the total hours claimed by Plaintiff’s counsel is warranted here. See Hines v. City of

Albany, 613 F. App’x 52, 55 (2d Cir. 2015) (summary order) (affirming a 30% reduction for block

billing); Caban v. Employee Sec. Fund of the Elec. Prod. Indus. Pension Plan, No. 10-CV-389

(SMG), 2015 WL 7454601, at *8 (E.D.N.Y. Nov. 23, 2015) (imposing a 33% reduction across the

board for excessive billing); see also Beastie Boys v. Monster Energy Co., 112 F. Supp. 3d 31, 57

(S.D.N.Y. 2015) (“Fee reductions around 30% are, further, common in this District to reflect

considerations of whether work performed was necessary, leanly staffed, or properly billed.”

(collecting cases)).

In sum, the Court awards Plaintiff attorneys’ fees in the amount of $149,857.05, calculated

by both adjusting the attorneys’ hourly rates and discounting the total number of hours claimed.

The table below lists the hours each attorney/staff worked, the adjusted hourly rates, and the fees

discounted by 30%.

Name Position Hours Worked Adjusted Hourly Rate Discounted Fees

Phillip Chang Partner 298.9 $400 $83,692.005

Bryan Fratkin Partner 0.7 $450 $220.50

Philip Goldstein Counsel 14.7 $425 $4,373.25

Seth Schaeffer Partner 0.2 $400 $56.00

Amanda Goldstein Associate 7.0 $250 $1,225.00

Anthony McGavran Associate 5.0 $300 $1,050.00

James McNichol Associate 171.8 $275 $33,071.50

Michael Stark Associate 60.6 $275 $11,665.50

Jennifer Neuner Staff Attorney 33.2 $225 $5,229.00

Connor Symons Paralegal 144.1 $70 $7,060.90

Bonnie Powell Paralegal 2.4 $100 $168.00

Nicolas Treviso Paralegal 4.6 $70 $225.40

Candy Guerrero Paralegal 18.8 $100 $1,316.00

Jacqueline Thomas Paralegal 0.7 $100 $49.00

David Sclafani Paralegal 0.8 $100 $56.00

5 For example, Mr. Chang’s Discounted Fees were calculated by multiplying the Hours

Worked (298.9) by the Adjusted Hourly Rate ($400) and then reducing that amount by 30%.

Victoria Levy Librarian 1.9 $75 $99.75

Gregory Stoner Library Manager 1.0 $75 $52.50

Emily Morrison Case Assistant 4.0 $75 $210.00

Cynthia Smith Librarian 0.7 $75 $36.75

Sum $149,857.05

III. Prejudgment Interest

“Under New York law, a plaintiff that prevails on a claim for breach of contract is entitled,

as a matter of right, to prejudgment interest from the date of breach until the entry of final

judgment.” Boyce v. Soundview Tech. Grp., Inc., No. 03-CV-2159 (HB), 2005 WL 627780, at *2

(S.D.N.Y. Mar. 17, 2005) (citing, inter alia, U.S. Naval Inst. v. Charter Commc’ns, Inc., 936 F.2d

692, 698 (2d Cir. 1991)); see N.Y. C.P.L.R. § 5001. “Where . . . damages for breach of contract

are incurred at various times after the date of the breach, ‘interest shall be computed upon each

item from the date it was incurred or upon all of the damages from a single reasonable intermediate

date.’” Danaher Corp. v. Travelers Indem. Co., No. 10-CV-121 (JPO) (JCF), 2015 WL 409525,

at *8 (S.D.N.Y. Jan. 16, 2015) (quoting N.Y. C.P.L.R. § 5001(b)). The Court may award

prejudgment interest sua sponte. See Rhodes v. Davis, 628 F. App’x 787, 793 n.2 (2d Cir. 2015)

(summary order) (“The district court has discretion to award [plaintiff] prejudgment interest under

§ 5001(a), regardless of whether he specifically requested it.” (citations omitted)); Newburger,

Loeb & Co. v. Gross, 611 F.2d 423, 434 (2d Cir. 1979) (“[I]t is well-established that federal courts

may award prejudgment interest even when it is not demanded in the complaint.” (citation

omitted)); see also Fed. R. Civ. P. 54(c) (“Every other final judgment should grant the relief to

which each party is entitled, even if the party has not demanded that relief in its pleadings.”).

While Plaintiff does not explicitly request prejudgment interest in its motions, the

complaint “contained a clear, though brief, demand for the [prejudgment] interest,” Boyce, 2005

WL 627780, at *2. (Complaint, Dkt. 1, at 17 (“Award to COAF reasonable attorney’s fees, interest

and costs . . . .”).) Because damages were incurred at various times between August 31, 2015 and

November 7, 2015, see Capital One, 2019 WL 4805253, at *2, the Court chooses October 1, 2015

as the intermediate date from which prejudgment interest shall incur. The end date for prejudgment

interest shall be the date of this Memorandum and Order and not the date of the Memorandum and

Order on the partial summary judgment motion. See Ariz. Premium Fin. Co. v. Emp’rs Ins. of

Wausau, of Wausau Am Mut. Co., 586 F. App’x 713, 717 (2d Cir. 2014) (summary order)

(affirming award of prejudgment interest until the date the judgment was entered, not when

liability was determined); United States v. Sage, No. 97-CV-1153 (JFK), 2006 WL 2690004, at *2

(S.D.N.Y. Sept. 19, 2006) (amending judgment to include prejudgment interest accrued as of the

date of amendment). Therefore, Plaintiff is entitled to prejudgment interest at the statutory rate of

9% per annum from October 1, 2015, to the date of this Memorandum and Order. See N.Y.

C.P.L.R. § 5004. The Court awards Plaintiff prejudgment interest for the damages award in the

amount of $64,039.98.6

CONCLUSION

6 The Court does not award prejudgment interest on the attorneys’ fees. Since the Dealer

Agreement does not have a provision on prejudgment interest, it is unclear whether Plaintiff is

entitled to recover prejudgment interest on the attorneys’ fees under N.Y. C.P.L.R. § 5001.

Compare Ursa Minor Ltd. v. Aon Fin. Prod., Inc., No. 00-CV-2474 (AGS), 2001 WL 1842042, at

*9 (S.D.N.Y. May 30, 2001) (“[I]nterest may only be added to a contractual award of attorneys’

fees if explicitly provided for in the agreement.” (citing F.H. Krear & Co. v. Nineteen Named Trs.,

810 F.2d 1250, 1267 (2d Cir. 1987))), with CARCO GROUP, Inc. v. Maconachy, 718 F.3d 72, 87–

88 (2d Cir. 2013) (distinguishing Krear and noting in dicta that “[a]lthough § 5001 does not

explicitly mention attorneys’ fees, Appellate Division courts have cited to § 5001 in approving or

otherwise discussing an award of interest on contract-based attorneys’ fees”). However, the Court

need not decide this issue. Assuming arguendo that Plaintiff is entitled to such interest under N.Y.

C.P.L.R. § 5001, the interest only accrues from the date “the party seeking fees was determined to

be the prevailing party.” Solow Mgmt. Corp. v. Tanger, 797 N.Y.S.2d 456, 458 (N.Y. App. Div.

2005); see id. (“Attorney fees are not damages for breach of any substantive provision of a contract

or substantive property right. Rather, they represent a conditional award or prerogative which does

not mature until the underlying action or proceeding has been determined. In the court’s opinion

that establishes the appropriate date from which interest should flow.” (citations omitted)).

Therefore, no prejudgment interest on the attorneys’ fees award has accrued as of the date of this

Memorandum and Order.

For the reasons stated above, the Court finds that Plaintiff is entitled to damages in the

amount of $164,482.40 and attorneys’ fees in the amount of $149,857.05, plus prejudgment

interest in the amount of $64,039.98.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: January 27, 2020

Brooklyn, New York