McDevitt v. Suffolk County

UNITED STATES DISTRICT COURT 2:08 pm, May  09, 2025

EASTERN DISTRICT OF NEW YORK

U.S. DISTRICT COURT

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EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

MICHAEL W. MCDEVITT,

MEMORANDUM

Plaintiff, AND ORDER

CV 16-4164 (GRB)(ST)

-against-

SUFFOLK COUNTY, SUFFOLK COUNTY POLICE

DEPARTMENT, SUFFOLK COUNTY POLICE

OFFICER GLENN TARQUINIO, in his individual

and official capacities, SUFFOLK COUNTY POLICE

OFFICER ALEJANDRO SANCHEZ, in his individual

and official capacities, SUFFOLK COUNTY POLICE

OFFICERS “JOHN AND JANE DOES # 1-10,” in

their individual and official capacities,

Defendants.

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GARY R. BROWN, United States District Judge:

Having filed a sweeping civil rights action against numerous defendants, plaintiff

obtained a verdict of excessive force against one police officer (though he established no

physical injury resulting therefrom) and prevailed on a well-supported claim of malicious

prosecution. This victory led to a money judgment that was ultimately remitted to $233,100.

Additionally, plaintiff prevailed on a Monell claim against Suffolk County resulting in solely

nominal relief. His counsel now seeks an award of attorneys’ fees and expenses totaling just

under $800,000.

The application can be divided into two: an easy part and a hard part. The easy part

consists of an application by Scott Korenbaum, Esq., who largely functioned as appellate

counsel. Mr. Korenbaum seeks approximately $45,000 for services which were appropriately

billed and sufficiently documented and to which the defense raises no significant opposition.

The hard part encompasses intertwined applications by Cory Morris, Esq. and Victor Yannacone,

Esq. (who, somewhat inexplicably, bills himself at various junctures as a partner, counsel,

associate, and paralegal), and who together handled the trial in a most unorthodox manner. In

support of this award, plaintiff’s counsel has submitted more than a hundred pages of bills laden

with block billing, double charges, unjustified fees for a post-discovery state FOIA litigation, and

other irrelevancies, which tend to undermine the showing counsel attempts to make in meeting

its burden. These nearly unintelligible applications are riddled with matters that are plainly

incompensable.

At the same time, counsel plainly achieved a significant victory herein, entitling plaintiff

to some attorney’s fee award. For the reasons that follow, the Court awards the total sum of

$187,270, consisting of the reasonably compensable attorneys’ fees and expenses.

Discussion

Relevant Facts

The facts and procedural history are contained in this Court's Memorandum and Order,

familiarity with which is assumed. McDevitt v. Suffolk Cnty., 2024 WL 1270811, at *1-2

(E.D.N.Y. Mar. 26, 2024). One other fact requires discussion. During the trial, over which this

Court presided, Mr. Morris appeared for plaintiff. His co-counsel, Mr. Yannacone, never

appeared personally, but was available electronically for consultation with Mr. Morris

concerning evidentiary and legal questions. To quote a famous television game show, Mr.

Morris would routinely “phone a friend,” to get assistance throughout the trial. See Tr. 769, 824.

The Court permitted this unusual arrangement given Mr. Morris’s relative inexperience in trial

matters, a fact that bears heavily on the instant application.

Standard for the Award of Attorney’s Fees

As this Court has previously held:

Title 42 U.S.C. § 1988 authorizes an attorney's fee award to prevailing plaintiffs

in a civil rights lawsuit filed pursuant to 42 U.S.C. § 1983. James v. City of Boise,

577 U.S. 306, 306, 136 S. Ct. 685, 193 L.Ed.2d 694 (2016); Perdue v. Kenny A.

ex rel. Winn, 559 U.S. 542, 550, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010);

Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

“When a plaintiff succeeds in remedying a civil rights violation ... he serves ‘as a

private attorney general,’ vindicating a policy that Congress considered of the

highest priority.” Fox v. Vice, 563 U.S. 826, 833, 131 S.Ct. 2205, 180 L.ED.2d 45

(2011) (citations omitted). As such, “plaintiffs may be considered ‘prevailing

parties’ for attorney's fees purposes if they succeed on any significant issue in

litigation which achieves some of the benefit the parties sought in bringing suit.”

Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)

(quoting Hensley, 461 U.S. at 433, 103 S.Ct. 1933); see also Texas State Teachers

Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791, 109 S.Ct. 1486, 103

L.Ed.2d 866 (1989). The Supreme Court has described this standard as

“generous” since nominal damages of one dollar are enough to bring plaintiff

across the “prevailing party” threshold. Farrar, 506 U.S. at 112, 113 S.Ct. 566;

see also Barbour v. City of White Plains, 700 F.3d 631, 634 (2d Cir. 2012) (citing

Farrar, 506 U.S. at 115, 113 S.Ct. 566).

…

“Both [the Second Circuit] and the Supreme Court have held that the lodestar—

the product of a reasonable hourly rate and the reasonable number of hours

required by the case–creates a ‘presumptively reasonable fee.’” Millea v. Metro-

North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). “The lodestar figure includes

most, if not all, of the relevant factors constituting a ‘reasonable’ attorney's fee.”

Perdue, 559 U.S. at 553, 130 S.Ct. 1662; see also Millea, 658 F.3d at 167. “[T]he

lodestar method produces an award that roughly approximates the fee that the

prevailing attorney would have received if he or she had been representing a

paying client who was billed by the hour in a comparable case.” Perdue, 559 U.S.

at 551, 130 S.Ct. 1662. “The reasonable hourly rate is the rate a paying client

would be willing to pay ... bear[ing] in mind that a reasonable, paying client

wishes to spend the minimum necessary to litigate the case effectively.” Lilly v.

City of New York, 934 F.3d 222, 231 (2d Cir. 2019).

“The burden is on the party seeking attorney's fees to submit sufficient evidence

to support the hours worked and the rates claimed.” Maldonado v. Srour, No. 13-

CV-5856 (ILG)(JO), 2016 WL 5864587, at *1 (E.D.N.Y. Oct. 6, 2016). “The

moving party ‘must support its application by providing contemporaneous time

records that detail “for each attorney, the date, the hours expended, and the nature

of the work done.’ ” ” Riley v. City of New York, No. 10-CV-2513 (MKB), 2015

WL 9592518, at *2 (E.D.N.Y. Dec. 31, 2015) (quoting N.Y. Ass'n for Retarded

Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)). “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.” Feltzin v. Union Mall, LLC, 393 F. Supp. 3d 204, 212

(E.D.N.Y. 2019) (citation omitted).

Jenkins v. Cnty. of Nassau, No. CV 19-557 (GRB)(SIL), 2021 WL 11471153, at *1–2 (E.D.N.Y.

2021).

Though the lodestar method represents the usual starting point for an attorney’s fee

analysis, the Court must then scour submissions for a variety of evils, which include double

billing, block entries, matters being performed by the wrong level provider (e.g., an attorney

performing paralegal work), and unreasonable hours expended. See, e.g., Hensley v. Eckerhart,

461 U.S. 424, 434 (“Counsel for the prevailing party should make a good faith effort to exclude

from a fee request hours that are excessive, redundant, or otherwise”). Yet, such an exercise

cannot be permitted to degenerate into a separate dispute. Fox, 563 U.S. at 838, 131 S.Ct. 2205

(citation omitted) (“[T]he determination of fees ‘should not result in a second major litigation’”).

“We do not require that the court set forth item-by-item findings concerning what may be

countless objections to individual billing items.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d

Cir. 1994).

To quote former SDNY District Judge William Pauley, “[a]s a concession to the

mortality of judges, the law does not require a line-item review of fee applications.” O'Toole v.

Allied Interstate, LLC, 2012 WL 6197086, at *1 (S.D.N.Y. 2012). The Supreme Court has

commanded:

trial courts undertaking that task need not, and indeed should not, become green-

eyeshade accountants (or whatever the contemporary equivalent is). The essential

goal in shifting fees is to do rough justice, not to achieve auditing perfection.

Accordingly, a district court may take into account its overall sense of a suit, and

may use estimates in calculating and allocating an attorney's time. [ ] And such

judgments, in light of the trial court's “superior understanding of the litigation,”

are entitled to substantial deference on appeal.

Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101, 110 (2017). These principles prove

especially apt here, given the contours of this litigation, the unusual, if not unique, manner in

which the trial was conducted, and highly problematic aspects of the fee petition.

Fees Incurred by Scott Korenbaum

Mr. Korenbaum’s application is a veritable model of professionalism. His hourly rate of

$500 per hour is supported not only by the results of the case, but specifically by a sworn

declaration of Fred Brewington, Esq. – a lawyer well known to, and respected by, this Court.

Mr. Brewington extols Mr. Korenbaum’s experience of 35 years, devoted almost exclusively to

civil rights and police misconduct litigation. DE 193. Mr. Brewington describes Mr.

Korenbaum as “recognized in the civil rights community as one of the pre-eminent appellate

attorneys.” DE 193 at 27. Mr. Brewington surveys the current market rates of civil rights

counsel, concluding that Mr. Korenbaum’s rate of $500 per hour is reasonable.1 See DE 193 at

29. Moreover, Mr. Korenbaum exercised billing judgment in limiting his hours to compensable

matters.

Defendants raise only one argument in an effort to reduce Mr. Korenbaum’s requested

$500 hourly rate. Citing this Court’s decision in Anderson v. County of Suffolk, No. 09-CV-1913

(GRB), 2016 WL 1444594 (E.D.N.Y. Apr. 11, 2016), which relied on Medina v. Donaldson, No.

10-CV-5922 (VMS), 2015 WL 77430 (E.D.N.Y. Jan. 6, 2015) counsel argues that top-tier

litigators are limited by the forum rule from receiving more than $450 per hour. DE 195 at 35.

1 Notably, Mr. Brewington makes no such assertions on behalf of Messrs. Morris and

Yannacone.

But given that those cases are more than a decade old, even a simple adjustment for inflation

would warrant an increase to more than $500.

As such, the Court finds that, in this case, Mr. Korenbaum’s requested rate and hours are

reasonable.

Rates for Cory Morris

Mr. Morris seeks $450 per hour, claiming that such payment “represents a reasonable

hourly rate for Mr. Morris,” and a significant reduction from his “regular” hourly rate of $750,

which, he claims, was recently raised to $925. DE 191 at 16; DE 194 at 9-10. Interestingly, Mr.

Morris’s claimed regular rates far exceed those of Mr. Brewington, who notes that his regular

rate is $600 per hour. DE 193 at 23. Though a solo practitioner, Mr. Morris oddly refers to

himself as a “partner” at his firm. DE 194 at 10.

Mr. Morris has previously appeared before this Court in several matters. His

performance and compensation varied greatly. In 2016, this Court awarded Mr. Morris, then

dubbed a “junior associate” Mr. Brewington’s firm, $150 per hour in a civil rights case.

Anderson, 2016 WL 1444594, at *5. In that same matter, the Court awarded Mr. Brewington,

one of the preeminent civil rights attorneys in this region, an hourly rate of $450.2 Id. By 2019,

Judge Bianco awarded Mr. Morris, then an associate, $225 per hour for his work (slightly more

2 In their filings, plaintiff’s counsel attacks what it characterizes as the “ossification” of attorney

compensation rates in the EDNY in civil rights cases, which largely relates to a perception that

judges have been reluctant to award more than $500 per hour. To support a purported

“unwillingness of the judges in this District to acknowledge and compensate fairly” civil rights

attorneys, counsel cites (among other things) the undersigned’s decade-old decision in Anderson,

granting Mr. Brewington $450 per hour rather than the $500 requested. DE 191 at 11-13. While

characterizing this Court’s rulings as exemplary of unfairness could be seen to score points for

temerity if not diplomacy, the attempted comparison of Mr. Morris’s skills to attorneys like Mr.

Brewington, Avi Moskowitz and Michael Spiegel – highly experienced advocates – proves

unworthy of further comment.

than the $200 per hour requested). Crews v. Cnty. of Nassau, No. 06-CV-2610 (JFB)(GRB),

2019 WL 6894469, at *13 (E.D.N.Y. Dec. 18, 2019). In one matter, after he transitioned to his

own firm, the undersigned noted the following concerning Mr. Morris’s work:

Plaintiffs’ counsel responded in a flurry of massive, disorganized filings. This

response bears some comment, as the filings by Plaintiffs’ counsel have proven

far below expectations, unnecessarily increased the costs and time required by

Defendants’ counsel and the Court to resolve these matters and, at times,

represented a violation of Court rules and orders.

Snyder v. Cnty. of Nassau, 531 F. Supp. 3d 609, 612 (E.D.N.Y. 2021).

During the trial, he labored admirably, if at times naively, often exposing his lack of

experience. In his filings, he tacitly acknowledges the same. DE 191 at 18 (“Mr. Morris is not

necessarily as seasoned as other attorneys….”). It is no secret that Mr. Morris was learning on

the job, as he openly admitted. See, e.g. Tr. 765 (“I have learned more about Monell over the

past 72 hours than I ever thought I would . . . I will be pleading cases much differently after this

one.”). Unquestionably, he made rookie mistakes. See, e.g. Tr. at 839 (continuing to litigate

false arrest despite failing to prove that claim); 861-62 (making basic mistakes concerning

objections and courtroom conduct); 914 (asking plainly improper questions); 1002 (expecting to

admit evidence after resting case).

There’s nothing shameful about inexperience. The question here is the value of the

services provided. All to say that a paying client would not compensate a relatively

inexperienced lawyer at the $450 rate sought.

After considering the relevant factors, including the significant but limited relief obtained

and the other matters examined herein, the Court will calculate fees for Mr. Morris at the rate of

$300 per hour.

Rates for Victor Yannacone, Esq.

Mr. Yannacone has been a lawyer since 1959. He has handled criminal defense,

corporate in-house work, real estate transactions, environmental law, and mass torts. See DE

192. Despite a long and respectable career, Mr. Yannacone provides the Court with precious few

relevant examples of his rates and claims to fix a rate depending on “the nature of the case” and

“according to the community rates.” DE 192 at 9. Mr. Yannacone styles himself an “American

Barrister,” and uses an “alternative” billing method that he “developed” for a corporation during

the 1970s. DE 192 at 13. This billing system, unrecognized in law, is described as follows:

As a solo practitioner, my hourly billing rates reflect the level of service provided:

$750 for services that are regularly performed by partners and senior attorneys “of

counsel,” $450 for services usually delegated to experienced Associates, and $250

for the services of skilled paraprofessionals.3

As a solo practitioner, there are no Associates or paralegals whose time can be

recorded and billed; however, by denominating the functional level of the service

provider performing a particular task or service, time/task/service provider billing

reflects their functional existence and contribution to each case.

DE 192 at 13-14. So, Mr. Yannacone’s billing “system” is both imaginative and, well,

imaginary; as he completes each task, he decides (as though suffering from multiple personality

disorder) which fictional member of his staff would have performed that task, and bills

accordingly.

A few examples of Mr. Yannacone’s “innovative” billing system demonstrate its

absurdity: On February 18, 2023, Mr. Yannacone – in his self-declared role as an associate –

billed $772.50 for reading a copy of Jimmy the King, a mass market book about former police

chief James Burke. DE 192 at 26. A month earlier, acting as an associate, Mr. Yannacone billed

$262.50 and $360 for drafting writs to produce former District Attorney Thomas Spota and his

top aide Christopher McPartland, both of whom were in federal custody, without any reason to

3 Importantly, this Court would not award any of these rates under these circumstances.

believe that they would agree to testify. Id. Similarly, Mr. Yannacone, now “of counsel,” billed

nearly $4,000 to draft a “trial script” for former District Attorney Timothy Sini and Legislator

Rob Trotta, neither of whom testified at trial. Id. at 32. Finally, it appears that Mr. Yannacone,

this time cast in the role of a paralegal, charged $408 to draft an entirely superfluous subpoena

for the defendant. DE 192 at 26-27. Based on such nonsense, Yannacone presents the Court

with an inscrutable “blended” billing rate for himself – a misapplication of the concept by which

firms sometimes generate a single rate for multiple providers – which inexplicably ranges from

$376 to $510. DE 192 at 3-4. While one could write a hefty essay about the ways in which such

billing is inappropriate, this “system” proves unhelpful to a Court endeavoring to fix an

appropriate hourly rate.

Left rudderless, the Court will award Mr. Yannacone $300 per hour for those services

that the Court finds compensable on this application.

Incompensable Items Billed by Morris and Yannacone

Cataloging the complete list of inappropriate items billed by Messrs. Morris and

Yannacone in the hundreds of pages of invoices submitted represents a Herculean task.

Fortunately, the law provides that the Court need not do so and provides an alternative

mechanism for resolving the issues. Several examples will suffice. First, counsel records

extraordinary sums for post-discovery Freedom of Information Law (FOIL) litigation conducted

in state court. Given the pendency of federal litigation, and the extraordinary discovery devices

afforded to federal litigants,4 counsel’s decision to commence a post-discovery FOIL case, rather

4 In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 89–90 (E.D.N.Y.),

report and recommendation adopted sub nom. Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233

(E.D.N.Y. 2012) (“Our federal court system provides litigants with some of the finest tools

available to assist in resolving disputes”).

than seek timely and less costly redress in this Court, defies all logic. Disturbingly, Mr. Morris

already sought fees for this work in the state court litigation.

The invoices submitted are infested with other inappropriate matters, several of which

have already been mentioned. Some references are simply baffling, including countless entries

referring to communications with Newsday, research relating to an appeal on behalf of the

newspaper, and a “Meeting with National Police Accountability Project Concerning the

McDevitt 50a Scenario.” DE 192 at 33, 45; DE 194-1 at 3, 7-9. Others are plainly outside of

the functions reasonably performed in connection with this case, including charges for “amicus

issues” pertaining to the conviction of former DA Spota. DE 192 at 34.

Vague and incomprehensible entries also dominate. Mr. Yannacone’s invoices include

entries such as “Monday afternoon strategy,” “parse Reform&Reinvention Report,”

“consideration of Trotta finesse,” “Litigation Chronicle” and “ten commandments of

depositions,” the import of which remain a mystery. DE 192. In addition, there appears to be

double billing: while Yannacone assures the Court that when he and Morris had strategy

meetings, only one attorney would bill. Yet this practice was inconsistent. See, e.g. DE 192 at

36 and DE 194-2 at 44 (both attorneys billing for a deposition strategy meeting on 7/30/2018).

Moreover, in observing counsel during the trial and related proceedings, nearly all work

performed was done in a duplicative and excessive manner, as Mr. Yannacone was regularly

checking the work of Mr. Morris. See Ortiz v. City of New York, 843 Fed. Appx. 355 (2d Cir.

2021) (upholding district court’s determination that a fee for duplicated work was excessive).

Additionally, there is a substantial gap between the much-applauded “zealous” advocacy

and blatant zealotry, and Messrs. Morris and Yannacone sometimes failed to recognize this

distinction.5 In this case, this failure manifested itself in an unwarranted focus on the

investigation and conviction of the former Suffolk County Police Chief and former Suffolk

County District Attorney on public corruption charges. Those events, though certainly

newsworthy, were largely, if not entirely, irrelevant to the issues in this case. Counsel wasted

much time, effort, and attention on these diversions. While plaintiff ultimately obtained a

Monell verdict, that determination proved a nominal victory with no practical implications.

Counsel took on this additional work and continued this quixotic endeavor even after having

been cautioned that, consistent with Second Circuit caselaw, such efforts would likely reduce

any attorneys’ fee award. Tr. 756-57. These facts further support a reduction of the fees sought.

Finally, though successful on a malicious prosecution claim, and, less significantly, an

excessive force count, most of the claims pursued by plaintiff failed. Despite the broad

allegations, numerous defendants, and sweeping litigation approach, plaintiff’s proof was limited

to certain actions of a single officer. Moreover, the Monell claim against the County was

pursued beyond the point of reason.

Taken together, these factors weigh in favor of a substantial across-the-board reduction of

the hours sought. The Court will reduce the hours sought by Morris and Yannacone by 70%, as

a reasonable approximation of the overbilling in the applications. See Matusick v. Erie Cnty.

Water Auth., 757 F.3d 31, 64 (2d Cir. 2014) (affirming district court’s discretion to apply across-

the-board reduction); Piccolo v. Top Shelf Prods., Inc., 541 F. Supp. 3d 256, 258 (E.D.N.Y.

2021) (applying 90% across-the-board reduction); Vega-Ruiz v. Northwell Health Sys., No. 19-

5 The Oxford English Dictionary defined zealotry as “[b]ehaviour or belief characteristic or

typical of a zealot; esp. immoderate or fanatical devotion to a religious or political cause or

ideal.” https://www.oed.com/dictionary/zealotry_n?tab=meaning_and_use#13667397.

CV-537 (GRB)(AYS), 2023 WL 8003366 at *2 (E.D.N.Y. Nov. 17, 2023) (applying 70%

across-the-board reduction). Thus, the Court will award the following attorney’s fees:

Provider Hours Adjusted Rate Total

Sought Hours

Scott Korenbaum, Esq. 95 95 $500 $47,550

Cory Morris, Esq. 892 267.6 $300 80,280

Victor Yannacone, Esq. 656 197 $300 59,040

Total $186,870

“Paralegal/Law Student” Expenses

In his sworn declaration, Mr. Morris represents:

I prepare my cases for trial personally without the aid of Associates or

paralegals. In this case, I exercised billing judgment and did not bill for

services that might have been performed by a paralegal, even though, of

necessity, I performed those services.

DE 194 at 19. This is troubling from several perspectives. First, Mr. Yannacone frequently

billed for performing paralegal services, particularly during trial, making Mr. Morris’s sweeping

representation ring hollow. Second, even a cursory review of Mr. Morris’s billing reveals that

the representation is untrue. See, e.g., DE 194-2 at 6 (billing – at a “partner” rate, for “Summons

Executed/Filing of Same.”).

And yet, while disavowing the assistance of paralegals in his work, Mr. Morris

concurrently demands $13,225.50 for “law student/paralegal work” at a rate of $250 per hour.

DE 194 at 3. This charge is predicated entirely upon a document entitled “Law Clerk and

Paralegal Time Journal.” DE 194-4. Nowhere in his massive submission does Mr. Morris

provide the required documentation identifying the providers or detailing their experience. Thus,

the request for $13,225.50 for such work is denied.

Expenses

While Mr. Morris attempts to recover several thousand dollars in fees and expenses, the

documents provided fail to demonstrate that such expenses were appropriately incurred. For

example, he paid process servers to attempt to serve subpoenas on defendant’s expert and

witnesses not listed in the pre-trial order and some of these costs appear to relate to the state

FOIL litigation. The Court will award the filing fee of $400 for commencing this case, as said

cost obviously was incurred.

Conclusion

Based on the foregoing, the Court hereby awards total attorney’s fees of $186,870 and

expenses of $400. The motion for fees and costs are denied in all other respects.

Dated: Central Islip, New York

May 9, 2025

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge