This Complaint sounds in defamation causes of action wherein plaintiff, a local attorney who practices criminal defense and was representing a client accused of assault, alleges that defendant published a false news story in which defendant's reporter attributed to plaintiff a quote allegedly said by plaintiff's client that "she punched me so I stabbed her."^[FN1] Plaintiff claims that prior to the publication of the quote, defendant's reporter questioned plaintiff about his client's arraignment to which he responded that he had "no comment." The news story with the improper quote was published in defendant's digital and print versions.

Defendant filed a Motion to Dismiss pursuant to New York CPLR § 3211(7). Plaintiff filed a Cross Motion to Dismiss Defendant's Cross Claims and for Leave to File a voluntary discontinuance. The previous IAS judge, the Honorable Craig D. Hannah, granted defendant's motion and denied Plaintiff's cross motion by Order dated August 14, 2023, with leave for Defendant to file an application for attorney's fees. Defendant filed a motion for attorney's fees and costs with affirmations and exhibits on September 29, 2023 (dkt 48-57), and Plaintiff filed opposition papers with exhibits on October 23, 2023 (dkt 58-67). A decision on the fee application was not issued prior to Justice Hannah's elevation to the Appellate Division.

In this anti-SLAPP counterclaim, the defendant's application for an award of costs and attorney's fees is explicitly recognized by the amendment of Civil Rights Law Section 70-a (a) (1) to be mandatory for all actions commenced or continued after the effective date of said [*2]amendment, to wit, November 10, 2020. The amendment transformed the awarding of costs and attorney's fees from discretionary consideration by the court to a compulsory element of recovery to be awarded upon the successful dismissal of the action under CPLR Rule 3211 (g) and/or 3212 (h) (as amended CRL § 70-a replaced "may be recovered" with "shall be recovered" in an anti-SLAPP action).

The plaintiff's complaint was dismissed by Order dated August 14, 2023, which was served with notice of entry on September 6. 2023 (Doc. Nos. 45, 46) that included a closing decretal paragraph stating, "ORDERED that Defendant is entitled to a quantum meruit award of attorney's fees together with costs, upon application by the Defendant and pursuant to Civil Rights Law § 70-a, in an amount to be determined by the Court on the papers to be submitted by the parties." Defendant made its application for attorney's fees and costs by way of notice of motion dated September 29, 2023, with supporting affirmations of counsel, memorandum of law and accompanying exhibits, including the relevant invoices and time sheets describing the chronology of the time and services performed. Doc. Nos. 48-57. Plaintiff opposed the motion/application by way of attorney affirmation, memorandum of law and accompanying exhibits. Doc. Nos. 58-67.

A concise statement and summary of the law on this issue was recently set forth in the case of Isaly v. Garde, — N.Y.S.3d —, 2024 WL 763923, 2024 Slip Op. 24056 (Sup. Ct., New York County, decided 2/13/2024):

"It is well established that courts have broad discretion in determining an award of attorney fees and costs," and that "New York courts often use the lodestar method, which is based on a reasonable hourly rate times a reasonable number of hours expended." New York Times Co. v. New York Office of the Mayor, 2023 NY Slip Op. 32941(U), *3, 2023 WL 5502516 (Sup. Ct., New York Co. 2023) (citations omitted).9 Courts applying the lodestar method have varied in considering fee applications on papers alone or through evidentiary hearings. Compare, e.g., I.O. v. New York City Dept. of Educ., Dkt. No. 20-cv-5061, 2021 WL 2701449, *1, 2021 U.S. Dist. LEXIS 122346, *1 (S.D.NY Jun. 29, 2021) (determining reasonable attorney's fees in IDEA litigation after trial); and Matter of Infinity Q Diversified Alpha Fund Securities Litig., 2023 NY Slip Op. 34527(U), *19, 2023 WL 8846591 (declining to grant attorney's fees without hearing); with, R.S. v. New York City Dept. of Educ., Dkt. No. 21-cv-2257, 2023 WL 6389118, *1, 2023 U.S. Dist. LEXIS 176654, *1 (S.D.NY Sept. 29, 2023) (determining reasonable attorney's fees in IDEA litigation on papers); and New York Times Co., at *1. (determining fees in FOIL litigation on papers). If anything, New York courts have generally favored hearings rather than papers in determining fees, especially where there is sharp disagreement at the fore or on the horizon. See, e.g., Matter of Infinity Q Diversified Alpha Fund Securities Litig., supra., citing, Sheridan v. Police Pension Fund, 76 AD2d 800, 801-802, 429 N.Y.S.2d 204 (1st Dept. 1980)."

"The lodestar method is based upon a 12-factor test considering:

(1) the time and labor required (emphasis added)

(2) the novelty and difficulty of the questions;

(3) the skill requisite to perform the legal service properly;

(4) the preclusion of employment by the attorney due to acceptance of the case;

(5) the customary fee;

(6) whether the fee is fixed or contingent:

(7) time limitations imposed by the client or the circumstances;

(8) the amount involved, and the results obtained;

(9) the experience, reputation, and ability of the attorney;

(10) the "undesirability" of the case;

(11) the nature and length of the professional relationship with the client; and

(12) awards in similar cases.

The order in this action granted an awarding of fees and costs based on a quantum meruit assessment. The basic precepts for the consideration of a quantum meruit application for attorney's fees is summarized, inter alia, as follows:

"The amount to be allowed is not necessarily affected by the number of attorneys employed . . . the fee must be measured as though the services were performed by one attorney. While the determination of the reasonableness of an attorney's fees ordinarily requires a consideration of such factors as the professional reputation of the lawyer for ability and integrity, the difficulty and importance of the work and labor performed, the sum involved, the result achieved, and the pecuniary status of the client . . . "

So far, there are no reported cases on the calculation of attorney's fees in anti-SLAPP cases/claims for recovery in New York, but there is a well-respected and established general rule on the scope of consideration that the courts generally apply to a statutory award of attorney's fees. The Fourth Department Appellate Division put it succinctly, as follows:

"Inasmuch as fee-shifting provisions are an exception to the "American Rule," they must be strictly construed (see Baker v. Health Mgt. Sys., Inc., 98 NY2d 80, 88, 745 N.Y.S.2d 741, 772 N.E.2d 1099 [2002], rearg denied 98 NY2d 728, 749 N.Y.S.2d 478, 779 N.E.2d 189 [2002]; Fiala v. Metropolitan Life Ins. Co., 6 AD3d 320, 323-324, 776 N.Y.S.2d 29 [1st Dept. 2004])."

Criss v. New York State Department of Health, Office of Temporary and Disability Assistance, 192 AD3d 1545, 1549 (4th Dept. 2021).

Plaintiff included two cases for reference and consideration by the Court, one out of the Southern District Court of New York, Knight First Amendment Institute at Columbia University, et al v. Biden, Jr. (No. 17-cv-5205 (NRB)^[FN2] (Doc. No. 51) and a state District Court from Dallas [*3]County, Texas (Mohamed v. The Blaze Inc., et al, Doc. No. 52).^[FN3]

In the present case, defendant recites the criteria in support of its fee application in paragraph 35 of Mr. Finnerty's affidavit dated September 29, 2023 (Doc. No. 49), as follows:

"35. In submitting this affidavit concerning the amount of reasonable fees incurred, I carefully have considered the following: (a) the time and services required, the novelty and difficulty of the questions involved, and the skill required properly to perform the services; (b) the range of fees customarily charged for similar legal services; (c) the potential damages amount involved and the results obtained; and (d) the experience, reputation and ability of the lawyers performing the services."

Defendant's motion submission materials in support of the application blend and address the basic elements that the Court is called upon to consider under equitable quantum meruit consideration and most of the factors of the lodestar method of evaluation. Doc. No. 49, ¶¶ 35-50. For purposes of the lodestar method of calculation the precedent established in Podhorecki v. Lauer's Furniture Stores, 201 AD2d 947 (4th Dept. 1994) guides the assessment to be made. The Podhorecki guidelines are clear and instructive:

1. In the absence of a request for a hearing, the fee award can be made on the submission of affidavits and documents. Neither party has requested a hearing and indeed, the Order (Doc. No. 45, 46) states that the award shall be made "in an amount to be determined by the Court on the papers to be submitted by the parties." There will be no hearing in this matter. Id.

2. In making the determination, "the trial court should first calculate the lodestar fee by determining the reasonable number of hours that should have been expended on the legal task and multiplying that figure by what the court finds to be the reasonable hourly rate (Matter of Rahmey v. Blum, 95 AD2d 294, 300-303, 466 N.Y.S.2d 350). That fee may then be adjusted upward or downward by a consideration of several subjective factors (Matter of Rahmey v. Blum, supra, at 303-304, 466 N.Y.S.2d 350)." Id. at 948.

3. "Although the amount of a fee and its relationship to the amount at issue in the lawsuit is one of the subjective factors that may be considered, that factor is considered to reduce the award, not to eliminate it (cf., Giarrusso v. City of Albany, 174 AD2d 840, 841, 571 N.Y.S.2d 141)." Id. at 948.

4. "Further, "[w]henever the court augments or reduces the lodestar fee, it must state its reasons for doing so as specifically as possible" (Matter of Rahmey v. Blum, supra, 95 AD2d at 305, 466 N.Y.S.2d 350)." Id. at 948.

The above criteria expanded on the Fourth Department's earlier Decision in a prior Podhorecki appeal wherein the Court initially confirmed the use of "the lodestar method of computing a statutory allowance of reasonable fees (citation string omitted)." Podhorecki v. Lauer's Furniture Stores, 184 AD2d 1066 (4th Dept. 1992).

There are a few matters of fact that are not seriously controverted or in dispute. The skill requisite to perform the legal service properly and the experience, reputation, and ability of the attorney(s) (lodestar factors 3 and 9) are manifestly established on behalf of defendant's legal counsel in this action. Mr. Finnerty's 17-page resume' accentuated by the "Highlights" recited in his favor as a notable expert in the field of First Amendment rights and Public Interest litigation ^[FN4] presents an array of achievement that is deserving of great respect. The "amount involved" in this action is unclear but the "result obtained" by the successful achievement of the dismissal is not in dispute (lodestar factor 8). Defendant prevailed and the result was achieved through the talent of its counsel. As for lodestar factor 10, the "undesirability" of the plaintiff's cause of action, there is no proof in the record that this action was scandalous or "muckraking" in any way against the integrity or public reputation of the defendant, and therefore that factor is devoid from any consideration. Factor 6 is not in dispute, this was a "fixed" rate fee case (not a contingency fee), nor are the hourly rate(s) charged (factor 5) . . . they are reasonable for this field of practice and the geographic area at the present time and certainly within the range of the legal expertise retained for the services provided by Mr. Finnerty and his firm.

Many of the other lodestar factors are capable of being evaluated with a measure of reasonable factual interpretation as they relate to consideration of the liability claim that confronted the defendant. While anti-SLAPP claims for recovery of attorneys fees are still somewhat in their early stages of litigation, the status of the First Amendment issues of free speech/press rights being protected in the absence of proof of falsity and malice have been litigated for decades (since the Supreme Court's ruling in New York Times v. Sullivan, 1964). This case did not present an issue of "novelty or difficulty" for defendant's counsel to address (lodestar factor 2), especially considering the indelible knowledge and familiarity of the subject matter possessed by counsel. There is nothing included in the moving papers in support of lodestar factors 4, 7, 11 (except as noted in footnote #4 relative to what is clearly a long-standing relationship between the defendant and Mr. Finnerty) or 12, and they must therefore be deemed missing in support of the application.^[FN5]

Not nearly as susceptible to being established and determined as a matter of supportable fact for the whole amount sought by the defendant to be awarded is lodestar factor 1, to wit, the time and labor required to address the sum and substance of the case at hand.

A. The Essence of This Action That Gives Rise to This Attorney's Fee Application

With the professional background and experience possessed by defendant's counsel (Messrs. Finnerty and Abdulla), combined with the extensive amount of representation they regularly provide to multiple media clients, most notably, The Buffalo News, the threshold question in this case becomes: Why was all of this time, energy and exhaustive legal effort required in the first place? The answer is, because while the defendant is constitutionally and statutorily immunized from legal liability for the content of its publications in the absence of provable falsity and malice in the making of its published material (thus resulting in the dismissal of this action on substantive merit review grounds), the defendant appears to be positing that the separate and collateral issue of "rewarding" the dismissal with an award of attorney's fees should also be looked at through a coextensive and pass-through prism of auto-pay based on some form of de facto declaration along the lines of, "no malice, no problem, I did nothing wrong, so pay my legal fees."

The plaintiff's claim and causes of action were found to lack actionable merit under the strict scrutiny analysis applicable under the First Amendment and statutory rights and protections granted to the defendant. That's all well and good as far as the underlying legal analysis and dispositional treatment of the case is concerned. The fact of the matter remains, however, that the defendant's reporter and publication supervisory staff, were admittedly careless and negligent in causing and allowing an embarrassing misstatement/non-statement of professional/ethical impropriety that they carelessly attributed to the plaintiff to be published both digitally and in hard copy printed form. Therefore, in great measure, the time and labor required to address the case at hand was caused by the defendant. The simple reality is that none of the work performed by defense counsel would ever have been sought or needed if the wrongful (albeit, non-actionable) content of what the plaintiff was not responsible for saying had not been published. The defendant is immune from financial liability for that degree of careless deviation from its standard(s) of journalistic efficacy, but that should not be alchemized into the defendant not being accountable for some of the "cost" incurred because of its negligent conduct that created the problem for which the legal services sought were needed in the first place.

B. Review of the Invoice Billing

It is incumbent on the Court to examine the hourly rates and time expended for which the defendant seeks an award of attorney's fees. This aspect of the process is not the most desirable nor palatable aspect of what is put before the Court, but the Legislature has imposed it and the defendant has asked for it "on papers." Disregarding this exercise would be welcomed by the Court but is regrettably unavoidable. O'Malley v. Town of Vestal Police Department, 226 AD3d 1204 (3rd Dept 2024).

The first Invoice (#1096) included at Doc. No. 55 delineates 93.6 billable hours (the Court's addition of the entries comes up with 98.6 hours) from 9/7/2022 through 12/12/2022. The vast majority of those hours, a total of 87.1, were clocked in between 12/1-12/12/2022. Within that 12-day stretch of time, 32.1 hours were allocated to Mr. Abdulla and 55.0 hours to Mr. Finnerty, much of which involved time spent on work unrelated to the preparation of the [*4]memorandum of law needed to layout the legal arguments in the emerging and evolving field of anti-SLAPP litigation. The time entries from 12/1-12/12/2022 describing work performed in producing the legal posture of the case totaled 30.8/hrs. of legal draftsmanship by Mr. Abdulla and 16.0/hrs. of "review" time by Mr. Finnerty, including 5.5 hrs. on 12/12/2022 to perform final "review and edits."^[FN6] The total fees charged for 46.8 hours of time expended by both attorneys to prepare a memorandum of law on a topic over which they already possessed thorough foreknowledge and command was $13,978.00.

Blending the hourly rates ($325.00 for Mr. Finnerty and $285.00 for Mr. Abdulla) to a straight-edged rate of $305.00/hr. and multiplying it generously by 31 hours to cover the reasonable time needed to assemble a set of motion papers involving a field of jurisprudence that was exceptionally well-known and seemingly would have been similar to those prepared in varied ways for this same client (see Resume' of Joseph Finnerty, Doc. No. 50), the reasonable fees allocable up through 12/12/2022 were $9,455.00.

The additional sum of $12,257.00 sought in Invoice #1103 dated August 1, 2023 (also part of Doc. No. 55), covers time entries from 1/19/2023-5/30/2023 which are questionable as to their reasonableness by virtue of the fact that during the month of January and into early February, the plaintiff made outreaches to the defendant to voluntarily discontinue the action if defendant would walk away without imposing the demand for attorney's fees. The good-faith dialogue and efforts between counsel continued through a pre-trial conference with the previous IAS court on March 8, 2023 where high/low parameters of $5,000/$27,000 were put into play, but apparently collapsed in April when the defendant discontinued the negotiations after refusing to entertain plaintiff's high/low counteroffer of $5,000/$15,000.00, which was accompanied by an email from defendant's counsel warning the plaintiff, "[a]nd so the legal fee 'meter' keeps running." (Doc. No. 58, Lippes Affirmation dated 10/20/2023, ¶ 38, referencing Doc. No. 64.) Was a counteroffer of $5,000/$20,000 not in the realm of good-faith consideration by the defendant? What about a counteroffer of $5,000/$25,000 that maybe could have then produced a mutually acceptable compromise at $7,500/22,500?^[FN7] Didn't the plaintiff's settlement initiative (seized upon by the IAS court) deserve the courtesy of ongoing good faith discussion rather than being hung out to "die on the vine" with the thrashing expressed in some of the emails (e.g., Doc. No. 64)? If the dialogue toward decent compromise had continued, many of the time entries on Invoice #1103 could have been avoided.

Though the Legislature did not impose any per se limitations on this particular statutory imprimatur of attorney's fee recovery to limit or prevent an award where there may be a showing of unreasonableness by a party to not act in good faith to settle, it has done so under the statutory [*5]granting of attorney's fees in other matters. A relevant example is found in cases against the state where a prevailing party can get an award of attorney's fees under CPLR § 8601 (a): "Fees shall be determined pursuant to prevailing market rates for the kind and quality of the services furnished, except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings." (emphasis added)

The precept of not rewarding a party with attorney's fees generated as a byproduct of obstruction and protraction in litigation is also well-established in the most common and widely litigated area of attorney fee application review, to wit, matrimonial actions under DRL § 237.^[FN8] The same criteria is utilized in examining the propriety and scope of attorney's fee awards in FOIL proceedings under Public Officers Law § 89 (4) (c). O'Malley, supra.

Based on the summary of events set forth in the affidavits of counsel and the time entries that show the onset of negotiations proposed by plaintiff's attorney to reach a potentially early reasonable settlement (see fourth time entry dated 1/19/2023 on Invoice #1033, Doc. No. 55) but lapsing thereafter, it is the determination of the Court that the defendant "unreasonably protracted the proceedings."

After careful review of all the submitted affirmations and documentary exhibits made in support of and in opposition to the defendant's application for an award of attorney's fees and costs, the same is hereby and granted in the total sum of $11,124.19.

Submit order accordingly.