This is a matter where plaintiff William Cruz ("Plaintiff") alleged certain State and City Human Rights Law violations on the part of the landlord defendants and co-defendant superintendent Miguel Nieves. On February 1, 2011, following trial, the jury returned a special verdict which found liability for discrimination and retaliation against defendant Nieves, an employee of Defendants. The jury also found that the landlord co-defendants themselves did not encourage, condone, or approve the alleged discrimination. The jury awarded Plaintiff $10,000 in compensatory damages and $25,000 in punitive damages.

By Decision and Order dated April 16, 2012, this Court set aside the jury's verdict and ordered a new trial, finding that the jury was incorrectly charged with the vicarious liability standard under the New York State Human Rights Law, rather than City Human Rights Law. On February 5, 2013, in an attempt to expeditiously resolve the matter, the parties then entered into a "pre-retrial stipulation," wherein the Defendants agreed to pay Plaintiff $35,000 as a "pre-retrial settlement." The parties also agreed to submit their dispute regarding reasonable attorneys' fees and costs to the Court for decision. The stipulation also provided that Plaintiff is the "prevailing party" in this action within the meaning of NYC Admin. Code §8-502(f) and NY Exec. Law §297(10).

On March 5, 2013, Plaintiff moved for an Order awarding attorneys' fees and costs in the amount of $480,484.00. Defendants Townhouse Management a/k/a Fashion Wear Realty Co., Inc., R & D 1487 Teller LLC and AP-Amsterdam 1487 Teller LLC (collectively, "Defendants") opposed the motion and in the alternative, cross-moved for an Order of Reference to hear and report the issue of attorneys fees. By Decision and Order dated October 21, 2013, this Court directed that a hearing be held before a Special Referee to (1) ascertain the reasonableness of the attorneys' fee sought, and (2) calculate and report with recommendations the total amount of attorneys fees and costs due Plaintiff.

A hearing was thereafter held before a court-assigned Special Referee (the "Referee"). The Referee's report, dated November 19, 2014, ultimately recommended Plaintiff be awarded a total of $194,137.88 in attorneys fees, along with $21,092.34 in costs and disbursements for a total award of $215,230.22 against the Defendants. Plaintiff and Defendants now move and cross-move, respectively, for an Order confirming in part, and rejecting in part, the Referee's report.

I. Party Contentions

Plaintiff argues that several portions of the report should be confirmed. The report properly found that Plaintiff's counsel, Emery, Celli, Brinckerhoff & Abady, LLP ("ECBA") "has attained an impressive reputation in its field of practice" and its staffing of this matter was "appropriate" and not excessive or redundant.Plaintiff also seeks to confirm the Referee's findings that the "Defendants were clearly responsible for much of the excessive time expended by ECBA in moving this case to trial" and "greatly enhanced the amount of hours incurred through [their] dilatory tactics" and that this litigation was "energetically contested by a defendant with deep pockets." The Referee properly ruled that the attorneys' hourly rates sought in their annual retainer agreements was "reasonable" and further, that Plaintiff was entitled recover fees for services provided before a formal retainer agreement was executed. Moreover, the Referee was correct in finding no evidence of bad faith on the part of Plaintiff for failure to settle this matter at an earlier point for less costs. Plaintiff also seeks to confirm those portions of the report that found ECBA's costs and disbursements of $21,092.34 were reasonable, and that Plaintiff is entitled to fees for hours necessarily expended in proceedings to collect their legal fees.

Plaintiff argues that other portions of the report must be rejected. First, the Referee erred in applying historical rates for fees sought instead of current rates. Plaintiff cites Missouri v. [*2]Jenkins, 491 U.S. 274 (1989) for the rule that when fees are awarded under a fee-shifting statute, such fees must be awarded based on "market rates" for services rendered. Second, Plaintiff contends that the Referee erred by reducing the presumptively reasonable "lodestar" figure by 50%. Contrary to the Referee's findings, the Plaintiff here obtained "what amounts to complete relief" and is therefore entitled to a full fee for time reasonably expended in the lawsuit. Plaintiff argues that the Referee improperly characterized Plaintiff's $35,000 verdict as "modest" and, in any event, the lodestar should not be reduced simply because a plaintiff recovers a low damage award. Further, the Referee erred in stating that the verdict was only rendered against the superintendent and not the landlord, since the landlord was strictly liable for the superintendent's discriminatory acts under New York City Human Rights Law. Plaintiff therefore argues that this portion of the report must be rejected, as they are entitled to the full amount sought in this matter — an attorney fee award of $480,484.00.

In opposition to the motion, Defendants initially note that Plaintiff is not "entitled" to a fee award — rather, the statute provides that fees and costs may be awarded at the court's discretion to a prevailing party. Defendants cross-move to confirm those portions of the Referee's report that applied ECBA's hourly billing rates found in their retainer agreements, as well as that portion of the report that reduced the lodestar figure by 50%. Defendants move to reject those portions of the report that did not find that the hours expended by ECBA were excessive, and found that ECBA properly staffed this litigation. Defendants accept the Referee's findings that ECBA may be compensated for services rendered prior to the date ECBA and Plaintiff entered into a signed retainer agreement. Defendants also concede and move to confirm the Referee's recommendation that ECBA is entitled to fees for hours expended from the date of verdict up to and including the date on which ECBA has furnished an hourly itemization of legal work. Defendants, however, do not concede that the specific total number of hours expended for these services was reasonable.

The Referee erred in concluding that the approximately 800 hours expended by two highly-experienced partner-level attorneys in a "factually and legally non-complex sexual orientation harassment/discrimination case, that resulted in essentially a default jury verdict awarding $35,000 in damages" against the individual defendant who did not defend himself at trial, were not excessive, redundant, or otherwise unnecessary. Defendants stress that Plaintiff was "proceeding on a strict liability statute" and there was no legally necessary reason for the volume of discovery demands interposed on Defendants, or the twelve-day jury trial in which eleven witnesses were called. The jury trial was "legally tantamount" to an "inquest based on facts that were not challenged or disputed" by the individual defendant, Miguel Nieves.

Defendants also stress that the Referee mistakenly placed the burden of offering a settlement on the Defendants instead of on Plaintiff. The record here demonstrates that ECBA made no demand for settlement in the years prior to trial. ECBA was "unwilling to compromise its excessive, unreasonable, and unconscionable demand for payment of approximately a half million dollars in legal fees" that caused the litigation to continue even after Plaintiff moved out of his apartment in 2008. Defendants argue that Plaintiff's conduct was not justifiable and constitutes bad faith. Further, the Referee erred by finding that ECBA properly staffed this case. Defendants characterize the litigation as a "slam dunk" and ECBA was "extremely and needlessly overzealous in litigating this matter" by, inter alia, assigning two highly-skilled [*3]partner-level attorneys to this case and pursuing unnecessary discovery. Defendants therefore asks this Court to further reduce the number of hours allowed for each attorney in calculating the lodestar figure.

Defendants further contends that the Referee was correct in holding that Missouri v. Jenkins, supra., does not apply to a fee application made pursuant to NY Admin. Code. §8-502(f). The case has thus far not been expressly extended by New York State trial courts, and in the absence of such authority, Plaintiff's attorneys should be limited to the published hourly billing rates found in their retainer agreements. Plaintiff chose the State Court forum and its applicable law when he commenced this lawsuit. ECBA's continued reliance on Missouri and Federal Law is misplaced and not binding on this Court.

The parties have each submitted supplemental reply affirmations in response to the motion and cross-motion. The pertinent arguments raised by the parties are addressed in the following analysis and discussion portion of this Decision and Order.

II. Applicable Law and Analysis

A trial court is "vested with broad power to accept or reject [a] Special Referee's report, including the power to make its own findings" (see Sage Realty Corp. v. Proskauer Rose LLP, 288 AD2d 14 [1st Dept. 2001][internal citations omitted]). At the outset, the Court agrees with Defendants' contention that Plaintiff is not entitled to the "full award of attorneys fees." Instead, a court may, in its discretion, award Plaintiff (the "prevailing party" in this matter) costs and reasonable attorney's fees (N.Y.C. Admin. Code §8-502[f]; Albunio v. City of New York, 23 NY3d 65 [2014]). In this matter, the Special Referee considered the relevant factors in determining the calculation of reasonable attorneys fees and, after a hearing, has made a fee award recommendation. The issues raised in the instant motion and cross-motion to confirm and reject the report are addressed as follows.

(1) The applicable hourly rates

Well-settled Federal Law provides: "[i]n order to provide adequate compensation where services were performed many years before the award is made, the rates used by the court to calculate the lodestar should be current rather than historic hourly rates'" (Gierlinger v. Gleason, 160 F.3d 858 [2nd Cir. 1998], citing Missouri v. Jenkins, 491 U.S. 274, 284 [1989]).Defendants contend that Missouri v. Jenkins is inapplicable to this State Court action grounded in New York City Human Rights Law. This Court, however, disagrees and finds Missouri to be controlling. As noted by the Court of Appeals in McGrath v. Toys "R" Us, Inc., the City Council did not alter the attorney fee provisions of New York City Human Rights Law to address any disagreements with Supreme Court precedent (3 NY3d 421, 433; N.Y.Admin. Code §8-502[f]). Moreover, applying Missouri appears to comport with the goal of the Restoration Act, which represented a desire that City Human Rights Law "meld the broadest vision of social justice with the strongest law enforcement deterrent" and emphasized that the Law has "uniquely broad remedial purposes" (see Williams v. New York City Housing Authority, 61 AD3d 62, 69 [1st Dept. 2009]). As recently noted by the Court of Appeals, Federal case law can provide useful guidance [*4]in determining an award of counsel fees to a prevailing civil rights plaintiff since "the attorney fee provision of the [NYCHRL] is similar to the fee provisions in the federal civil rights statutes" (Albunio v. City of New York, 23 NY3d at 73, citing McGrath v. Toys "R" Us. Inc., supra).

In light of the foregoing, Plaintiff's counsel is therefore entitled to apply their "current rates" when calculating the lodestar. However, the limitation on this rule is that a prevailing attorney may not be awarded the hourly rates of, for example, a partner, for work that the attorney performed earlier in the litigation as an associate. "...[A]warding current' rates does not mean applying [the attorney's] current rate, as a senior associate, to work he performed as a junior and mid-level associate. Instead, it means awarding today's rate for an attorney who possessed [the attorney's] skill and experience, when the work was done'" (Todaro v. Siegel Fenchel & Peddy, P.C., 697 F.Supp.2d 395, 400 [E.D.NY 2010], citing Lochren v. County of Suffolk, 344 Fed. Appx. 706, 710 [2nd Cir. 2009]).

In this case, Plaintiff seeks to recover attorneys fees for services rendered by Mariann Wang, Esq., and Katherine Rosenfeld, Esq.^[FN1] Ms. Wang was a partner at ECBA throughout the time she worked on this matter. Plaintiff is therefore entitled to recover the "current rate" for all of the hours she billed from 2007 through 2011, and not the rates reflected in the retainer agreements. Because, as determined by the Referee, a rate of $525 reflected a reasonable rate for attorneys in New York City with similar backgrounds and experience, that rate will appropriately be applied to calculate the total amount billed by Ms. Wang.

Ms. Rosenfeld was admitted to the bar in 2002. She joined ECBA as an associate attorney in 2004, and became a partner in January 2011. Plaintiff is, therefore, entitled to recover fees for 2011 through 2013 at her current partner rate of $450, as requested by counsel and deemed appropriate by the Referee. For years 2007 through 2010, she was a mid-level/senior associate, and retainer agreements submitted at the hearing reflect her rates of $325 in 2007-08, $375 in 2009, and $400 in 2010. There is no evidence on record demonstrating the "current rate" for an associate of Ms. Rosenfeld's experience during those years. The Court will therefore award attorneys fees for work performed as an associate, at the rates applied by the Referee, in light of the absence of evidence that a current 5th, 6th, 7th, and 8th -year associates at ECBA are entitled to higher rates. Moreover, those rates reflect the prevailing market rates for attorneys of similar experience and reputation in this geographical location (see, e.g., Source Vagabond Systems, Ltd. v. Hydrapak, Inc., 2013 WL 136180 *8,10 [S.D.NY Jan. 11., 2013] [approving rates of $320 per hour for junior associate and $405 per hour for senior associate in patent infringement case,] report and recommendation adopted in relevant part, 2013 WL 634510 [S.D.NY Feb. 21, 2013]).

(2) Allegedly excessive, redundant, and otherwise unnecessary hours expended

After the hearing, the Referee found that the number of hours expended by Plaintiff during the course of this litigation was appropriate. Plaintiff now seeks to confirm that finding. In its cross-motion, Defendants urge this Court to reject that conclusion. While Defendants accepts the Referee's rulings that Plaintiff is entitled to compensation for (1) work performed [*5]prior to the date ECBA entered into a signed retainer agreement with Plaintiff, and for (2) work performed from the date of the verdict up to and including the date which ECBA furnished an hourly itemization of legal work on February 4, 2013, Defendants object as to the total number of hours claimed to be expended by ECBA in rendering these services.

Where questions of fact are submitted to a referee, it is the function of the referee to determine the issues presented, as well as to resolve conflicting testimony and matters of credibility, and generally courts will not disturb the findings of a referee "... to the extent that the record substantiates his findings and they may reject findings not supported by the record ..." (Kardanis v. Velis, 90 AD2d 727 [1st Dept. 1982], citing Holy Spirit Association for the Unification of World Christianity v. Tax Commission of the City of New York, 81 AD2d 64, at p. 71 [1st Dept. 1981], rev'd on other grounds 55 NY2d 512 [1982]).

The Referee found that ECBA obtained injunctive relief for the plaintiff in 2007, several weeks before a retainer agreement was executed. The Referee noted that there were "exigent circumstances surrounding Mr. Cruz's retention of ECBA" that required "immediate measures be taken by counsel, including the preparation of the application for a preliminary injunction." The Referee ultimately concluded that the 20.65 hours expended for these services were proper, as there was "no claim that these services were provided for any reason except to advance the claims of the Plaintiff in this litigation..." Here, Defendants object to the approximately 50 hours billed in total in preparation of the Order to Show Cause. Defendants note that application was resolved via stipulation on the return date, where Defendants consented to the injunctive relief sought.

Defendants also object to the approximately 400 hours expended pre-trial discovery from 2007 through 2010, and another 400 hours expended for pre-trial preparation and trial from January 3, 2011 through February 1, 2011. Defendants object primarily on the grounds that this case was a "slam dunk," was not complex, and was "legally tantamount to a twelve (12) day, eleven (11) witness inquest based on facts not challenged by the principal defendant Miguel Nieves, and the trial resulted in a "default jury award" of $35,000. Defendants also note that the attorneys who worked on this matter were "highly experienced partner level attorneys."

In his report, the Referee found that Defendants argued, but did not prove, that any of the hours expended were excessive, redundant, or otherwise unnecessary. The Referee also found no evidence of "bad faith" on the part of ECBA by proceeding to trial and not settling the matter, especially in light of the fact there was no evidence of written settlement offers from either side, and ECBA was not obligated to accept the "low ball" post-verdict offer of $35,000 for the verdict amount, and $65,000 for fees. Defendant argues strenuously that ECBA engaged in "overzealous and ultimately legally unjustifiable litigation strategy and tactics" in this matter. The Referee rejected that argument as unsupported, and further found that ECBA's staffing of this case was proper since it was energetically contested" by Defendant with deep pockets." The Referee also found evidence that the enhanced costs were the result of certain delays that occurred during discovery as a result of Defendant's actions, and were not the fault of Plaintiff. Notably, the Referee cited an instance where the deposition of a witness for Defendant had to be suspended because she would not provide responsive answers. Counsel for Defendant then sought to withdraw as counsel for Mr. Nieves, and then sought to reschedule the trial after it was referred to the STP part because the witness, who had been served with a trial subpoena, was out of the [*6]country. Defendant does not directly address these findings of fact in its cross-moving papers. In their reply affirmation, Plaintiff stresses that the Referee's conclusions are correct.

Discussion

This Court presided over the two-week trial of this matter and, as noted in the motion and cross-motion, has the authority and responsibility to determine whether a claim for fees is reasonable. "Underlying this responsibility is the traditional authority of the courts to supervise the charging of fees for legal services under the courts' inherent and statutory power to regulate the practice of law'" (Solow Mgt. Corp. v. Tanger, 19 AD3d 225, 226 [1st Dept. 2005], citing Matter of First Natl. Bank of E. Islip v. Brower, 42 NY2d 471, 474 [1977]).

A trial judge may decline to compensate hours spent by collaborating lawyers or may limit the hours allowed for specific tasks, and in doing so, is mindful of what is appropriate for the scope and complexity of the particular litigation (see New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136 [2nd Cir. 1983]). In making such adjustments, a court may simply issue a percentage cut to the total hours billed as opposed to line-by-line deductions (Id., see also Kirsch v. Fleet Street, Ltd., 148 F.3d 149 [2nd Cir. 1998]). Further, a court's determination on such matters will not be overturned on appeal unless it is apparent that the size of the award is out of line with the degree of effort reasonably needed to prevail in the litigation (New York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1146).

In this case, the Court's attention is drawn to the billing that occurred during the pre-trial and trial period from January 3, 2011 through February 1, 2011. Over this time frame, Ms. Wang billed 179.0 hours, and Ms. Rosenfeld billed 214.80 hours, for a total of 393.8 hours. Upon review, this Court deviates from the Referee's report and finds that Plaintiff counsel's billing during this particular period was duplicative and excessive. This Court finds that, while defended vigorously, this litigation was not so complex factually or legally as to require attendance of two highly experienced attorneys at each day of trial. The services of a partner and an associate are usually appropriate. Here, however, the bulk of the pre-trial and trial work was performed by a partner and a senior-level associate, who would become a partner in January 2011 when this trial commenced. Moreover, many of the billing entries throughout January 2011 detail conferences between these two attorneys, as well as meetings with the client where both attorneys were present (see Rozell v. Ross-Holst, 576 F.Supp.2d 527, 541 [S.D.NY 2008]). While this was a serious case that was, as the Referee found, "energetically defended," it involved no novel questions of law or complex evidence (see, e.g., Cush-Crawford v. Adchem Corp., 94 F.Supp.2d 294 [E.D.NY 2000]).

Accordingly, the Court finds that a 50% reduction in the amount of hours billed by Ms. Wang (179.0) and Ms. Rosenfeld (214.8) from January 3, 2011 through February 1, 2011, reflects a reasonable estimation of proper attorneys fees during that time period. The Court will uphold the Referee's determination with respect to the remaining hours billed to this matter as substantially supported by the record. The Court finds no evidence to support Defendants' contentions that Plaintiff engaged in overly aggressive or "legally unnecessary" strategies during the course of this litigation. Further, the parties stipulated that the Plaintiff did not document $2,462.00 of the total claimed costs and disbursements. The Court, therefore, confirms the [*7]Referee's report to the extent that it recommends Plaintiff be awarded $21,092.34 in costs and disbursements.

(3) The Referee's downward adjustment of the lodestar figure

The final issue to be determined is whether the Referee erred by reducing the lodestar by 50%. The Referee reasoned that the injunctive relief secured by counsel at the outset of this litigation was "against one individual, and in favor of one plaintiff," and therefore it cannot be said that this relief "will have far-reaching consequences in terms of preventing harassment by superintendents against tenants, no matter how improperly motivated." Further, while the Referee found that the injunctive relief was the "major achievement" in this litigation, he found that obtaining this relief did not require extraordinary skill, as "few jurists would deny an application for a stay of the type of reprehensible behavior alleged, and the Defendants hardly had a range of viable defenses available to them." The Referee ultimately recommends reduction of the fee award for the sole reason that the jury verdict, and ultimate disposition by settlement, "was an outcome of mixed success at best."

Plaintiff argues that this recommendation is erroneous because, among other reasons, the Plaintiff actually obtained what amounts to complete relief and is entitled to an award that fully compensates counsel for time expended on this lawsuit. Even if the Referee was correct that the award was "modest," the lodestar figure should not be reduced simply because a plaintiff recovered a low damage award. Plaintiff obtained injunctive relief and a jury verdict after a twelve-day trial. Plaintiff's success here was "private in form only" as it made Defendant aware that it has to exert still greater efforts to protect its tenants and society itself (citing caselaw). Plaintiff's counsel rejects the Referee's statement that obtaining the injunctive relief required no "extraordinary skill." Counsel instead argues that this was a novel case, one of the first in New York for housing discrimination based on sexual orientation where the initial injunctive relief was obtained to protect the victim's physical safety. Moreover, this was a "rare example of a sexual orientation housing discrimination action being tried to a jury under New York City Human Rights Law" and thus involved a "challenging area of the law." Finally, the verdict was not only obtained against the superintendent, but the landlord as well because the landlord was strictly liable under New York City Human Rights Law.

Defendants argues that the Referee's findings as to the "degree of success" achieved here must be upheld.

Discussion

It is true that fee-shifting in civil rights litigation is intended to "secure legal representation for plaintiffs whose constitutional injury [is] too small, in terms of expected monetary recovery, to create an incentive for attorneys to take the case under conventional fee arrangements" (Kassim v. City of Schenectady, 415 F.3d 246, 251 [2nd Cir. 2005]). Further, a Court may not reduce the lodestar figure merely because the figure is disproportionate to the damages recovered. This is because "the whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery" (see Millea v. Metro-North R. [*8]Co., 658 F.3d 154, 169 [2nd Cir. 2011]). However, the fee-shifting provision " is not a license to expend limitless resources on litigation simply because the defendant foots the bill. Such an approach would create perverse incentives to drive up costs of litigation, which would end up hurting plaintiffs by making settlements more difficult." (Marchuk v. Faruqi & Faruqi, LLP., 2015 WL 1811153, *5 [S.D.NY, April 20, 2015, No. 13 Civ.-1669 (AKH)]).

While the lodestar figure represents the "presumptively reasonable fee," a court has discretion to reduce the lodestar to reflect the degree of success achieved at trial (see Stanczyk v. City of New York, 752 F.3d 273, 284-85 [2nd Cir. 2014]). "Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained" (Hensley v. Eckerhart, 461 U.S. 424 [1983]). The Supreme Court has further emphasized that the calculation of an appropriate fee is a discretionary procedure best left in the hands of the trial courts who have a "superior understanding of the litigation" (Id. at 437). In determining the "degree of success," a court is "obligated to give primary consideration to the amount of damages awarded as compared to the amount sought... Such a comparison promotes the court's central responsibility to make the assessment of what is a reasonable fee under the circumstances of the case" (Farrar v. Hobby, 506 U.S. 103, 114 [1992]; see also Mcgrath v. Toys "R" Us., Inc., 3 NY3d 421). Courts have the authority to reduce the fee awarded to a prevailing plaintiff below the lodestar even where, as here, the plaintiff has secured more than a "nominal or technical victory" (see Kassim v. City of Schenectady, 415 F.3d at 256). In Dotson v. City of Syracuse, for example, the court reduced a plaintiff's attorney fee award by 50% where several causes of action were ultimately dismissed, and where plaintiff asked the jury to return a verdict for $1,000,000, yet was only awarded $450,000 (2011 WL 817499 *25 [N.D.NY Mar. 2, 2011, No.04 Civ.-1388 (NAM)], aff'd in part, dismissed in part, 2013 WL 6183012 [2nd Cir. Nov. 27, 2013]).

In this matter, Plaintiff's counsel secured injunctive relief at the outset of the litigation, and eventually a jury verdict in the total amount of $35,000 for its client. The record reflects that on the eve of trial, Plaintiff made a settlement demand in the amount of $350,000, without specifying any allocation between legal fees and recovery for the client. The ultimate monetary award in this case was therefore 10% of the amount sought. Plaintiff, moreover, elected to move to Brooklyn rather than accept Defendant's offer to move him into an apartment elsewhere on their properties. Under these circumstances, the degree of success achieved was modest when compared to the pre-trial settlement demand (see, e.g., Stancyk v. City of New York, 990 F.Supp.2d 242 [E.D.NY 2013]). This Court, therefore, will reduce the lodestar figure by 50% on those grounds.

Accordingly, it is hereby

ORDERED, that the motion and cross-motion are decided to the extent provided herein, and the lodestar figure should be calculated as follows:

For the reasons set forth above, Plaintiff is awarded a total of $164,778.75 ($329,557.50 reduced by 50%) in attorneys fees, plus $21,092.34 in expenses for a total award of $185,871.09.

This constitutes the Decision and Order of this Court.