Matter of Nesmith v Martuscello

Supreme Court, Albany County

Decided on January 6, 2026

Index No. 906682-25

David A. Weinstein, J.

The motion before me arises out of an Article 78 petition brought by DeJour Nesmith to overturn and expunge a Department of Corrections and Community Supervision ("DOCCS") [*2]decision issued following a January 29, 2025 Tier III disciplinary rehearing at Marcy Correctional Facility. The petition names as respondent DOCCS Commissioner Daniel F. Martuscello III (Petition ¶¶ 1-4).

In brief, the facts underlying the petition were as follows: Nesmith was charged with assault on an officer and various other charges in a September 9, 2024 disciplinary report (Petition ¶ 9). He was found guilty after an initial hearing, but that finding was reversed on administrative appeal, on the ground that the hearing officer "failed to indicate how they considered the incarcerated individual's mental health status after obtaining required testimony" (id. ¶¶ 12-13). A rehearing was scheduled, and at the outset the hearing officer made these remarks captured on a body-worn camera placed on the hearing officer's desk:

"What happened is, for whatever reason, Central Office inadvertently kicked the ticket back to us. So, we just have to go through the motions and redo the hearing. I do have Dr. Kimble [sic] available, if need be. I also have video of the incident. But we're just gonna kind of run through it, like we do a normal hearing. You know, I'll read the script, ask you to state your name, DIN number. You know, I'll read the misbehavior report, the UI. You know, all the other pertinent stuff. And of course ask you for your plea, and you can plead guilty or not guilty and that's . . . We're just gonna go through the motions again, they're just making us redo it. I don't know why" (id. ¶ 16).

After petitioner was again found guilty, the disposition was affirmed on administrative appeal (id. ¶ 38). This petition followed, arguing that Nesmith had been denied his right to an impartial decision-maker. After the proceeding commenced, DOCCS reversed the decision in a July 25, 2025 administrative determination, (Affirmation of Lela M. Gray, Esq., dated July 28, 2025 ["Gray Aff"] ¶¶ 4-6, Ex A-B). On that basis, respondent moved to dismiss the petition as moot. By Decision and Order dated August 11, 2025, I granted the motion, on the ground that all the relief sought had been achieved as a result of the July 25 administrative ruling.

Petitioner now moves for an award of attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), set forth in Article 86 of the CPLR (CPLR § 8601 et seq.) (Affirmation in Support of Motion for Attorney's Fees of Matthew McGowan, Esq., dated October 10, 2025 ["McGowan Aff"] ¶ 2). The EAJA provides in relevant part: "a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust."

Although his petition was dismissed, Nesmith premises his application on the "catalyst theory," which holds that "a petitioner is a prevailing party if the desired result is achieved because the proceeding brought about the voluntary change in the respondent's conduct," even if the matter is not litigated to a judgment or other ruling in the petitioner's favor (see Matter of Clarke v Annucci, 190 AD3d 1245, 1245 n 1 [3d Department 2020], lv dismissed 37 NY3d 935 [2021], abrogated Matter of Markey v Tietz, — AD3d —, 2025 NY Slip Op 04689, *8 [3d Dept August 14, 2025]). He argues that because he administratively received the relief to which he was entitled, and such occurred only after his filing of the Article 78 petition, he is a prevailing party under CPLR § 8602(f) (Petitioner's Memorandum of Law in Support of Motion for Attorney's Fees, dated October 10, 2025 ["Pet MOL"] 3-4). Therefore, petitioner contends that [*3]he is entitled to counsel fees as a party with limited financial resources^FN1 who sued to challenge an unreasonable governmental action and succeeded in acquiring the relief sought (id. at 4).

As set forth in counsel's affirmation, petitioner is seeking an award of $7,380.00 in attorneys fees for drafting and filing the petition, which he states took 16.4 hours (McGowan Aff ¶¶ 11-15). Counsel calculates this amount based on an hourly rate of $450, which he argues is reasonable based on his over 12 years of experience as a practicing attorney (id.). He supports this claim with an affirmation from William A. Hurst, Esq., who avers that licensed attorneys in Albany, New York with comparable experience receive an average hourly rate of $450-$550 (McGown Aff, Ex 3 [Declaration as to Attorney Rates of William A. Hurst, Esq., dated July 10, 2023]).

Respondent opposes the award, based on the following argument: its administrative reversal of the DOCCS Tier III hearing determination and expungement of that determination from petitioner's disciplinary record was premised on petitioner's challenge to the timing of the hearing officer's allegedly biased statements, i.e., the fact that they were made prior to the commencement of the hearing (Respondent's Memorandum of Law in Opposition to Petitioner's Motion for Attorney's Fees, dated October 24, 2025 ["Resp MOL"] 4). Respondent asserts that petitioner raised this issue for the first time in the Article 78 petition, and therefore, its administrative affirmance of Petitioner's disciplinary hearing (which raised the substance but not the timing of the hearing officer's remarks) was substantially justified (id. at 4-5). It was only when DOCCS learned via the Article 78 petition and in particular in petitioner's affidavit presented in support thereof that the hearing officer had made the cited remarks before the rehearing had commenced, that respondent administratively reversed and expunged the disciplinary hearing determination (id.).

Respondent also contends that the attorney fees sought are excessive based on the prevailing rates in the Third Judicial District, and the routine nature of the issues raised in the petition (id. at 5). He asserts, based on a review of the caselaw, that the typical rates range from $165 to $300 per hour (id.). Respondent therefore argues that if I grant an award of counsel fees, it be at a rate of no more than $250 per hour (id. at 6). He further contends that the Hurst affirmation carries no weight, since it is based solely on the fees charged by his firm Young/Summer, LLC, but provides no other evidence that such a fee is uniform throughout the entire Third Judicial District. To the extent petitioner's counsel took over 16 hours to draft the petition in this matter, respondent further argues that any attorney with 12 years of experience could have drafted such a routine pleading in far less time (id. at 7).

In reply, petitioner argues that DOCCS' reversal of the disciplinary hearing was not based [*4]on information it received for the first time in the Article 78 proceeding (Memorandum of Law in Reply to Respondent's Opposition to Petitioner's Motion for Attorney's Fees, dated October 30, 2025 ["Reply MOL"] 2). Rather, the issue of the hearing officer's off the record conversation was raised in a March 21, 2025 letter from petitioner's counsel to DOCCS as further support for his administrative appeal^FN2 (NYSCEF Doc No. 11 [body camera "recorded an exchange immediately before the hearing began,"]). This correspondence makes clear, as evidenced by the body camera footage obtained by counsel, that the hearing officer made the statement at issue prior to commencment of the hearing (id.). Thus, petitioner argues that DOCCS was aware of the pre-hearing timing of the hearing officer's biased statements prior to it issuing the affirmance on administrative appeal (id. at 3). Thus, petitioner contends he was forced to commence the Article 78 proceeding to challenge the administrative appeal determination (Reply MOL at 3).

Petitioner further supports his fee request with a 2024 ruling I issued in a separate Article 78 proceeding in which I approved an unopposed $400 per hour request for fees totaling $4,800 for work performed by an attorney, who at the time had eight years of practice experience (id. at 7 citing Matter of Cuevas v Annucci, Index No. 901787-23 [Sup Ct Albany County 2024]). Petitioner further notes that a case cited by respondent, Matter of Rouse v Martuscello (Index No. 900635-24 [Supt Ct Albany County 2024] [Platkin, J.]), while approved only a $300 hourly rate for Mr. Nesmith's present counsel, was premised on a reduction of the total fee request by 20 percent due to the case involving a routine legal issue (id.).

DISCUSSION

As noted, under the EAJA the Court "shall" award attorneys' fees to a "prevailing party" against the State, unless the respondent's position was "substantially justified." (CPLR 8601[a]).

Until recently, the Third Department rejected the catalyst theory as a basis to recover fees under the EAJA (see Matter of Clarke, supra). But the Court has now abandoned that position, and has made clear that a party prevails when it "obtains all of the relief sought in a lawsuit against the State — including when the relief is granted voluntarily by the State after the action is commenced — and is thus a prevailing party under the EAJA as a matter of Law" (Matter of Markey, supra, at *8 [mphasis added] [overruling Clarke to the extent it states a contrary understanding of a party's ability to use the "catalyst theory" to qualify as a prevailing party under the EAJA]). Under Matter of Markey, Nesmith is undisputedly the "prevailing party" in this case — and respondent does not argue otherwise.

I also find that respondent was not substantially justified in affirming the ruling of the hearing officer on administrative appeal. The record before it included both the timing and substance of the hearing officer's statements indicating that the rehearing was merely a "show trial" and implying at the outset that the outcome would be the same — a finding that Nesmith was guilty of the charges as he was during the initial hearing (see NYSCEF Doc No. 11). The supplemental appeal submitted once petitioner had obtained counsel made this absolutely clear (see id. at 3 ["Here, the Hearing Officer made it clear before the hearing even began that he did not intend to conduct a fair and impartial proceeding"]). Respondent does not articulate any [*5]other basis for why the hearing officer's statements did not clearly require vacatur of his ruling, and I can see none (see Matter of Nicholas v Mantello, 199 AD2d 894, 895 [3d Dept 1993] [annulling ruling finding petitioner guilty of violating prison disciplinary rules when "the record shows that the Hearing Officer impermissibly determined petitioner's guilt prior to the conclusion of the hearing"]).

As to the amount to award in fees, reasonable attorney's fees are commonly understood to be those fees which represent the reasonable value of the services rendered (see NYCTL 1998—1 Trust v Oneg Shabbos, Inc., 37 AD3d 789, 790 [2d Dept 2007]). The appropriate rate for compensating counsel is to be determined based on "prevailing market rates for the kind and quality of the services furnished" (CPLR 8601[a]). The assessment of what compensation is reasonable rests within the sound discretion of the court, which "may consider its own knowledge and experience and may form an independent judgment from the facts and evidence before it as to the nature and extent of the services rendered" (RMP Capital, Corp. v Victory Jet, LLC, 40 Misc 3d 1243[A], *6 [Sup Ct Suffolk County 2013] affd as modified on other grounds 139 AD3d 836 [2d Dept 2016]).

As a general rule, the "reasonable hourly rate [for an attorney] should be based on the customary fee charged for similar services by lawyers in the community with like experience and of comparable reputation to those by whom the prevailing party was represented' " (Gamache v Steinhaus, 7 AD3d 525, 527 [2d Dept 2004], quoting Getty Petroleum Corp. v G.M. Triple S. Corp., 187 AD2d 483, 483—484 (2d Dept 1992]). Moreover, the attorney seeking approval of his or her fee bears the burden of establishing the reasonable value of the services rendered, including the rate charged (see Lancer Indem. Co. v. JKH Realty Grp., LLC, 127 AD3d 1035, 1036 [2d Dept 2015]).

Here, I find that the affidavit from Mr. Hurst is anecdotal at best, and does not provide a basis to support its claim of providing an accurate picture of the typical hourly rate for lawyers in the Third Judicial District, or even those found in Albany County. Indeed, as noted, it specifically applies to the rates charged by lawyers in one private firm I find more persuasive Justice Platkin's analysis in the Rouse^FN3 matter — cited by both parties — suggesting that the reasonable billing rate for petitioner's counsel was $300 per hour. This fee, adjusted for inflation — as advocated by petitioner's counsel — equates to approximately $310 in today's dollars, and I see no reason to deviate from this figure see Reply MOL at 7 n 2). That is especially so since cases from this locale indicate "reasonable rates to generally be $275 - $350 for experienced partners" (see Franco v Gunsalus, 2023 WL 8106306, *6 [ND NY 2023]).

Petitioner seeks compensation for counsel's drafting and filing of the petition, which is alleged to have taken 16.4 hours of counsel's time, consisting of 3.2 hours to draft the petition; 4.7 hours to draft the memorandum of law; and 1.8 hours for legal research, along with various smaller tasks (McGowan Aff ¶¶ 11-15, Ex 1 [Time Record]). Upon review of counsel's time records, I find that this is not on its face unreasonable (id., Ex 1). And while respondent correctly points out that the challenge to an impartial hearing officer is not a novel or complex issue— particularly for an attorney with experience in cases of this sort (see Resp MOL 6-7) — that does not mean the time allocated to this case was excessive. Nesmith's petition and 18-page [*6]memorandum of law set forth three separate challenges to the disciplinary ruling, and I do not find it unreasonable for his attorney to have spent just under eight hours to research and draft the brief.

As a result, plaintiff's counsel is entitled to recover attorneys' fees of $5,084 (16.4 hours at $310 per hour).

Accordingly, it is

ORDERED that petitioner's motion is granted to the extent that petitioner is awarded reasonable counsel fees in the sum of $5,084, and the motion is otherwise denied; and it is further

ORDERED that judgment be entered accordingly.

This constitutes the Decision & Order of the Court, the original of which is being electronically filed with the Clerk of the Court, with copies emailed to counsel for the parties. The signing and e-filing of this Decision and Order shall not constitute notice of entry. Counsel is not relieved frm the applicable provisions of the CPLR respecting to filing and service of notice of entry.

ENTER

Dated: January 6, 2026

Albany, New York

David A. Weinstein

Acting Supreme Court Justice

Papers Considered:

1. Notice of Motion and Affirmation in Support of Motion for Attorney's Fees of Matthew McGowan, Esq., dated October 10, 2025, with Exhibits annexed thereto, along with Petitioner's Memorandum of Law in Support of Motion for Attorney's Fees, dated October 10, 2025.

2. Respondent's Memorandum of Law in Opposition to Petitioner's Motion for Attorney's Fees, dated October 24, 2025.

3. Memorandum of Law in Reply to Respondent's Opposition to Petitioner's Motion for Attorney's Fees, dated October 30, 2025, with Exhibits annexed thereto.