Green

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________

KEVIN GREEN,

JULIAN PEREZ,

DECISION

Plaintiffs, and

v. ORDER

CITY OF BUFFALO,

BATTALION CHIEF RONALD K. BOURGEOIS, 23-CV-1166-LJV(F)

Individually and in his Official Capacity as

Battalion Chief,

COMMISSIONER WILLIAM RENALDO,

Individually and in his Official Capacity as

Commissioner,

DEPUTY COMMISSION RAMO SUAREZ,

Individually and in his Official Capacity as

Deputy Commissioner,

MAYOR BYRON BROWN,

Defendants.

_____________________________________

APPEARANCES: TIVERON LAW PLLC

Attorneys for Plaintiff

STEVEN M. COHEN, of Counsel

2410 North Forest Road, Suite 301

Amherst, New York 14068

HODGSON RUSS LLP

Attorneys for Defendants

JOSHUA I. FEINSTEIN,

JOSHUA B. LEVITT,

ADAM W. PERRY, of Counsel

The Guaranty Building, Suite 100

140 Pearl Street

Buffalo, New York 14202-4040

In this § 1983 action, the court determined that Plaintiffs’ motion to extend

discovery to accommodate depositions, based on Plaintiffs’ belated discovery and

disclosures, of 10 additional non-party witnesses should be denied and that Defendants’

cross-motion to preclude, pursuant to Fed.R.Civ.P. 37(c), any testimony at trial of such

witnesses should be granted. See Decision and Order (Dkt. 61) (“D&O”). Based on its

findings, that Plaintiffs failed to timely disclose such witnesses as required by

Fed.R.Civ.P. 26(a)(1)(A)(i), see D&O (Dkt. 61) at 5, and Plaintiffs’ motion lacked

substantial justification as predicated on Plaintiffs’ false assertions of fact regarding

Plaintiffs’ lack of foreknowledge of the existence and identity of such witnesses, the

court found Defendants were entitled to reasonable expenses pursuant to Fed.R.Civ.P.

37(c)(1) (as Defendants contended, see (Dkt. 12-1) at 11-12, 14-15)), including

attorneys fees, in successfully opposing Plaintiffs’ motion and in seeking an order of

preclusion. D&O at 5-6, 7-9, 11-12.

In accordance with the D&O, Defendants timely filed Defendants’ application in

support of an award of attorneys fees incurred by Defendants in connection with

Defendants’ opposition to Plaintiffs’ motion and in support of Defendants’ cross-motion

for requesting preclusion. See Dkt. 64 (filed October 20, 2025). Defendants’

application included a Supplemental Memorandum of Law together with the Declaration

Of Joshua B. Levitt In Support Of Rule 37 Motion For Reasonable Expenses (Dkt. 64-1)

(“Levitt Decl.”) together with Exhbit A, a spreadsheet print-out detailing 53.3 hours of

work performed in the case by Mr. Levitt, a seven-year associate of the Hodgson Russ

firm and Joshua I. Feinstein (“Feinstein”), a 23-year litigating partner at the firm using a

blended hourly billing rate for both attorneys of $360 for a total award of $19,188.

According to Levitt, Defendants have elected not to request the time incurred by

paralegals at the firm who assisted the attorneys in analyzing deposition testimony of

several of Plaintiffs’ putative newly discovered non-party witnesses. Levitt Decl. ¶ 6.

Nor do Defendants request fees for the time spent by counsel in submitting a related

motion to extend the period for dispositive motion practice to accommodate the litigation

of Plaintiffs’ and Defendants’ motions. Id. ¶ 5.

In making its determination on Defendants’ fee request, the court is guided by its

recent decision in Gugino v. City of Buffalo, 2025 WL 1260691, at *2 (W.D.N.Y. May 1,

2025) as follows: “[I]n determining a fee award, the typical [starting] point is the so-

called lodestar amount, that is ‘the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate.’” New York v. Grand River Enterprises

Six Nations, Ltd., 2021 WL 4958653, at *2 (W.D.N.Y. Oct. 26, 2021) (quoting Healy v.

Leavitt, 485 F.3d 63, 71 (2d Cir. 2007) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433

(1983))). “In calculating the lodestar amount, the initial burden is on the requesting party

to submit evidence supporting the number of hours worked and the hourly rate claimed.”

Grand River Enterprises Six Nations, Ltd., 2021 WL 4958653, at *2 (citing Hensley, 461

U.S. at 433). “A reasonable hourly rate is a rate ‘in line with ... prevailing [rates] in the

community for similar services by lawyers of reasonably comparable skill, expertise and

reputation.’” McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension

Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.

11 (1984), and citing Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d

1053, 1058-59 (2d Cir. 1989)). “[O]nly those hours “reasonably expended” are to be

awarded. Id. (quoting Hensley, 461 U.S. at 434–35). Attorney fees awarded as a

sanction are not intended to provide the prevailing party with a windfall, but “merely to

compensate [ ] for additional expenses incurred on this single discovery matter.” Matteo

v. Kohl's Dept. Stores, Inc., 2012 WL 5177491, at *7 (S.D.N.Y. Oct. 19, 2021). Further,

courts often employ an across-the-board reduction in hours to “trim the fat.” See

McDonald v. Pension Plan of the NYSA–ILA Pension Trust Fund, 450 F.3d 91, 96 (2d

Cir. 2006) (“A district court may exercise its discretion and use a percentage deduction

‘as a practical means of trimming fat from a fee application.’”) (quoting Kirsch v. Fleet

St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998)) (further internal quotation).

The fee application “must be supported by contemporaneous time records,

affidavits and other materials.” McDonald ex rel. Prendergast, 450 F.3d at 96. Here,

significantly, Plaintiffs do not dispute Defendants’ blended $360 hourly rate, and

Plaintiffs’ opposition appears to be limited to Defendants’ cross-motion to preclude and

overlooks that the work by Defendants’ attorneys was directed to both Defendants’

opposition to Plaintiffs’ motion as well as to Defendants’ cross-motion; see Plaintiffs’

Memorandum of Law (Dkt. 65) at 7. See Trustees of Buffalo Laborers’ Pension Fund v.

Accent Stripe, Inc., 2007 WL 2743441, at **3-4 (W.D.N.Y. Sept. 18, 2007) (approving

use of blended rate reflecting different hourly rates charged by attorneys of various

levels of skill and experience). See also Peacock v. City of Rochester, 2016 WL

4150445, at *7 (W.D.N.Y. Aug. 5, 2016) (approving hourly rate of $425 for experienced

civil rights attorney).

Defendants stated that Mr. Levitt expended 39 hours and Mr. Feinstein expended

13 hours1 in preparation of Defendants’ response to Plaintiffs’ motion and in preparing

Defendants’ cross-motion. See Dkt. 64-2 at 2. The spreadsheet also provides a

detailed account of each lawyer’s activities on this matter including, for example, 3.4

hours for continued legal research relating to drafting opposition to Plaintiffs’ motion to

1 Rounded from 39 hours, 12 minutes; 13 hours, 4 minutes, respectively.

extend the scheduling order which motion gave rise to Defendants’ cross-motion. In a

related time entry, Levitt recorded 4.4 hours in analyzing deposition testimony and

deposition exhibits of nine of Plaintiffs’ non-party witnesses to determine the factual

basis for Plaintiffs’ claims that the identity of such witness was only recently discovered

by Plaintiffs, an assertion which proved to be false. See D&O (Dkt. 61) at 5-6, 7-9, 11-

12; see also Scott-Iverson v. Independent Health Assoc., Inc., 2017 WL 2374407, at *2

(W.D.N.Y. May 31, 2017) (actions of plaintiff’s counsel required defendant’s counsel to

perform substantial work including 22 hours of deposition transcript review entitling

defendant to additional attorneys fees). As to Mr. Feinstein, the spreadsheet supports

the conclusion that his work was limited to revisions of the attorney declaration and

memorandum of law in opposition to Plaintiffs’ motion and in support of Defendants’

cross-motion. See Dkt. 64-2 at 2. Defendants’ counsels’ combined work resulted in an

eight-page attorney (Levitt) declaration with 11 exhibits and an 11-page memorandum

of law. See Dkt. 64 at 5-6. The court thus concludes that the record demonstrates that

Plaintiffs’ assertion required Defendants’ attorneys to analyze in detail all of nine

depositions and Plaintiffs’ other discovery requests to ascertain whether Plaintiffs’

assertion of Plaintiffs’ alleged recent awareness of the identity of such witnesses had

merit or was, as the court found in the D&O, false. See D&O (Dkt 61) at 9. Plaintiffs

further object to Defendants’ request contending that Defendants overstaffed

Defendants’ motion to preclude by assigning two experienced attorneys to the motion.

See (Dkt. 65) at 7. Plaintiffs’ objections overlook that Defendants were required to

address both Plaintiffs’ motion and Defendants’ cross-motion to preclude. Additionally,

courts routinely approve fee requests to two attorneys. See Ursa Minor Ltd. V. Aon

Financial Products, Inc., 2001 WL 1842042, at *6 (S.D.N.Y. May 30, 2001) (recognizing

complex case commonly requires work by more than one attorney (citing Lenihan v.

City of New York, 640 F.Supp. 822, 825 (S.D.N.Y. 1986) (considering use of more than

one attorney is not duplicative or unreasonable where attorneys perform different tasks

including drafting and editing papers). Defendants were also required to prepare and

file a 10-page reply memorandum of law in support of Defendants’ cross-motion. See

(Dkt. 49). As such, the court finds Defendants’ request for reimbursement based on

53.3 hours for attorney work to be reasonable. However, the court finds it is also

necessary to modify Defendants’ request for a reduction of 15% to account for

redundancy and unnecessary duplication of attorney activities particularly related to Mr.

Feinstein’s 7.1 hours of work in revising the attorney declaration on April 14, 2025 (Dkt.

65-2) at 2, in addition to the 7.1 hours of work on the attorney declaration by Mr. Levitt

on the same date April 14, 2025. Id.; see McDonald, 450 F.3d at 96 (court may

exercise its discretion and employ a percentage reduction in a fee request as a fair

means of “trimming fat from a fee application”); Robbins & Meyers, Inc. v. J.M. Huber

Corp., 2011 WL 1598973, at *7 (W.D.N.Y. Apr. 27, 2011) (reducing requested attorneys

fees by 15% to “trim the fat”).

Accordingly, the court GRANTS Defendants’ application by deducting $2,878.202

from Defendants’ requested fee award of $19,188 for a total of $16,309.80. Based on

the court’s conclusion that the belated disclosures, meritless Plaintiffs’ motion, and the

need for Defendants’ preclusion order is primarily attributable to Plaintiffs’ counsel,

2 $19,188 x 15% = $2,878.20.

Plaintiffs’ attorneys shall pay and remit the fee award to Defendants’ counsel not later

than 30 days from the filing of this Decision and Order.

SO ORDERED.

/s/ Leslie G. Foschio

_________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

Dates: December 2, 2025

Buffalo, New York