This Decision and Order supplements this Court's prior Decision and Order dated May 7, 2025 relating to Mot. Seq. #1 that, inter alia, granted to Defendant an award of attorney's fees pursuant to Civil Rights Law §70-a. Following issuance of that Decision and Order, counsel for all parties appeared before the undersigned at which time a briefing schedule was issued, and the parties were afforded the opportunity to submit further documents in connection with the award of attorney fees. Accordingly, the following electronically filed documents were reviewed and considered in connection with Defendant's application for attorney's fees:

In support of the application for fees, Attorney Dennis Lynch ("Attorney Lynch") submits an affirmation attesting to the work he performed on behalf of Defendant in this SLAPP suit he argues was frivolously filed and continued by Plaintiff. In furtherance of his application, Attorney Lynch submits an accounting of the services he provided between December 1, 2024 and March 31, 2025 by invoice dated April 3, 2025 in the amount of $12,350.00, consisting of 24.7 hours billed at a rate of $500 per hour. A second invoice, dated May 12, 2025 reflects the time billed between April 2, 2025 and May 12, 2025 in the amount of $6,950, consisting of 13.9 hours billed at a rate of $500 per hour. The total of these invoices is $19,300.

In his Affirmation, Attorney Lynch explains he did not charge Defendant for his work on her behalf at the outset of the litigation between December 2, 2024 — January 16, 2025, during which time he was actively engaging with Plaintiff on Defendant's behalf concerning discontinuance of the SLAPP action which would subject him to paying Defendant's attorney fees and would be considered frivolous conduct under court rules. Unpersuaded, Plaintiff opted [*2]to continue the action, requiring Defendant to incur significant legal expenses to file her motion to dismiss the claim, which legal expenses are detailed in the April and May 2025 invoices.

In his Affirmation, Attorney Lynch indicates that, due to Defendant's limited financial resources, her friends have paid her legal fees and that any award of attorney fees would be reimbursed to those contributors.

In opposition to the application, Plaintiff, an attorney himself, first challenges the rate charged by Attorney Lynch by comparing it to his own lesser stated rate for estate planning services, which he states he always discounts. Plaintiff further attempts to challenge Attorney Lynch's rate by the proffer of information relating to the rate paid by Orange County to law firms retained as outside counsel for legal defense in specialized matters. Lastly, Plaintiff attempts to rely on a defamation case against a news outlet in Buffalo, New York that negligently published a statement that was carelessly attributed to the plaintiff, resulting in the alleged defamation claim.

Inasmuch as this Court has already determined Defendant is entitled to an award of attorney's fees in this SLAPP action, the only consideration remaining is the appropriateness of the fees sought.

"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." Isaly v. Garde, 83 Misc 3d 379, 393—94 (NY Sup. Ct. 2024) (citing New York Times Co. v. New York Office of the Mayor, 2023 NY Slip Op. 32941(U), 2023 WL 5502516 (Sup. Ct., New York Co. 2023) (citations omitted). The lodestar method is based upon a 12-factor test considering: (1) the time and labor required; (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. Isaly, supra, at 394 (citing New York Times Co., supra.) Fee applications applying the lodestar method can be considered on papers alone. See, R.S. v. New York City Dept. of Educ., Dkt. # 21-cv-2257, 2023 WL 6389118, 2023 U.S. Dist. LEXIS 176654 (S.D.NY Sept. 29, 2023) (determining reasonable attorney's fees in IDEA litigation on papers); New York Times Co., supra (determining fees in FOIL litigation on papers).

To this end, Attorney Lynch has submitted evidence demonstrating a total of 38.6 hours billed to this matter at his hourly rate of $500, for a total fee of $19,300. Attorney Lynch also demonstrated his initial work for Defendant was done pro bono and included a comprehensive letter brief to Plaintiff outlining the myriad reasons compelling discontinuance of the action.

While Plaintiff does not expressly challenge the number of hours billed, he appears to make a thinly veiled argument that Attorney Lynch should not have needed to devote as much effort to defending the action given his prior experience in this area of law. Plaintiff also questions whether all of the work was performed by Attorney Lynch or by an associate, for whom a lesser rate would be commanded. This disingenuous argument ignores that Plaintiff himself caused the additional effort by refusing to discontinue the frivolous action even after being presented with the compelling arguments made by Attorney Lynch in the December 27, [*3]2024 letter. Moreover, in his affirmation, Attorney Lynch addressed Plaintiff's concerns about the hours billed by affirming that all of the work was completed by him, with the exception of a court filing and court appearance, neither of which was billed for in any event.

Plaintiff's comparison of the discounted rate he charges for part-time estate planning services is unavailing as a challenge to the hourly fees charged by Attorney Lynch, a seasoned litigator who was retained by Defendant for his skills and legal acumen, which was demonstrated by his willingness to perform initial work on a pro bono basis. Moreover, as to the hourly rate paid by Orange County to outside defense counsel law firms, it is not lost on this Court that those are rates negotiated for a public entity client that is not necessarily reflective of the hourly rate charged by those firms for legal services to their private clients. Accordingly, this information is not indicative of an excessive or improper fee charged by Attorney Lynch.

Lastly, Plaintiff relies on Cimasi v. Buffalo News, a case that involved a local criminal defense attorney representing a client accused of assault wherein the defendant news outlet published a story attributing to the attorney a quote allegedly said by his accused client admitting to the assault, when the attorney had actually responded that he had "no comment" when defendant's reporter questioned him about his client's arraignment. See, Cimasi v. Buffalo News 86 Misc 3d 1220(A) (NY Sup. Ct. 2024). Therein, as here, the court granted defendant's dismissal motion and ordered that defendant was entitled to attorney's fees in an amount to be determined upon papers to be submitted by the parties. In considering the application, the Cimasi court noted the defendant's application for an award of costs and attorney's fees is explicitly recognized by the amendment of Civil Rights Law §70-a (a) (1) to be mandatory for all actions commenced or continued after the effective date of said amendment, which 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 §3211 (g) and/or 3212 (h) (as amended CRL §70-a replaced "may be recovered" with "shall be recovered" in an anti-SLAPP action). 86 Misc 3d 1220(A).

The Cimasi court further noted 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, citing that "Inasmuch as fee-shifting provisions are an exception to the "American Rule," they must be strictly construed." Criss v. New York State Department of Health, Office of Temporary and Disability Assistance, 192 AD3d 1545, 1549 (4th Dept. 2021)(citing Baker v. Health Mgt. Sys., Inc., 98 NY2d 80, 88 [2002], rearg den. 98 NY2d 728 [2002]; Fiala v. Metropolitan Life Ins. Co., 6 AD3d 320, 323-324 [1st Dept. 2004]).

By including an excerpt from the Cimasi decision, Plaintiff herein seemingly relies on a portion of that court's discussion on the reasonableness and quantification of the required services that analyzed why the specified amount of legal effort was required in the first place, given the "extensive representation" those defense attorneys "regularly provided to their multiple media clients", including the defendant therein.

It bears noting that while Defendant herein sought the advice and counsel of Attorney Lynch who admittedly has experience in this area of law, there is no evidence before the court to support Plaintiff's apparent contention Attorney Lynch regularly provides extensive representation in defamation actions such that his expertise in this area should be compared to the attorneys in Cimasi.

An even more compelling distinction lies in the court's additional analysis — curiously [*4]also included by Plaintiff herein - that "the defendant's own reporter and publication advisory 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." (Cimasi, supra.) Spelling it out further, the court stated, "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." Id. The court continued that, "The defendant (newspaper) 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." Id. Based in part on this analysis, the court accordingly reduced the award of attorney's fees from the amount sought.

There is nothing about the Cimasi holding that compels a similar reduction in the instant matter. Contrary to Plaintiff's contentions, this matter did not come before the court because of defendant's recklessness but rather because of Plaintiff's refusal to recognize the lack of merit of his claim. Plaintiff's continued insistence on an alternative narrative is indicative of his denial of this Court's prior ruling that dismissed his action for lack of merit. Likewise, without merit is Plaintiff's argument he was never given the opportunity to prove the statement was false and that Defendant acted with actual malice, as this argument fails to acknowledge the standard of review on a motion to dismiss, which he had ample opportunity to oppose.

Attorney Lynch is a seasoned litigator who expended documented time, initially pro bono, in the defense of a frivolous action that Plaintiff had the option to discontinue before any legal expenses were actually incurred by Defendant. Further, review of his invoices shows Attorney Lynch expended entirely reasonable amounts of time for necessary activity during the limited timespan during which this action was pending and the motion to dismiss was submitted. Accordingly, this Court finds no reason to reduce the award from that amount sought and proven.

Accordingly, it is hereby

ORDERED that Defendant is hereby awarded attorney's fees in the amount of $19,300.00 with no interest thereon, and it is further

ORDERED that Defendant shall serve a copy of this Order with Notice of Entry within five (5) days hereof, and it is further

ORDERED that Plaintiff shall pay to Defendant the sum of $19,300.00 within ninety (90) days after service of this Order with Notice of Entry, and it is further

ORDERED that Defendant may enter judgment against Plaintiff in the amount of $19,300.00 if the aforesaid award is not paid to Defendant within the time frame specified herein, and it is further

ORDERED that within thirty (30) days after receipt of final payment by Plaintiff, Attorney Lynch shall affirm to the Court all funds have been distributed back to the donors in reimbursement of the legal fees paid on Defendant's behalf.

The foregoing constitutes the Decision and Order of this Court.