Greenman v. Miller

1

2024 NY Slip Op 30709(U)

JANE GREENMAN, Plaintiff, v. LARRY MILLER, MILLMAN LLC, 392 COLUMBUS AVENUE LLC, SDMJD NEXT GENERATION LLC Defendants.

Index No. 650304/2017, Motion Seq. No. 011

Supreme Court, New York County

March 6, 2024

Unpublished Opinion

MOTION DATE 12/19/2023

DECISION + ORDER ON MOTION

HON JOEL M. COHEN, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 011) 587, 588, 589, 590, 591, 592, 593, 594, 595 596, 597 were read on this motion for ATTORNEY FEES

Plaintiff Jane Greenman ("Plaintiff' or "Mrs Greenman") moves for an Order awarding attorney's fees and costs pursuant to the Court's Decision and Order, dated December 5, 2023 (NYSCEF 579 at 4-5). Plaintiff requests that the Court award her $2,027,801 in professional fees incurred in this action prior to the Court's post-trial decision, $65,748 in professional fees incurred thereafter, and $115,039 in other litigation expenses. Defendants Larry Miller ("Miller"), Millman LLC ("Millman"), 392 Columbus Avenue LLC ("392 Columbus"), and SDMJD Next Generation LLC ("SDMJD") oppose this motion. For the following reasons, Plaintiffs motion is granted in part.

"The determination of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Supreme Court" (Lancer Indent. Co. v JKH Realty Group, LLC, 127 A.D.3d 1035, 1035-36 [2d Dept 2015]). "The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community" (id. at 1036). Appropriate factors include "the time and labor required, the difficulty of the issues involved, and the skill and effectiveness of counsel" (JK Two LLC v Garber, 171 A.D.3d 496, 496 [1st Dept 2019], citing In re Estate of Freeman, 34 N.Y.2d 1, 9 [1974]). When reviewing the overall reasonableness of a fee application, the "court is not required to 'set forth item-by item findings concerning what may be countless objections to individual billing items[.]"' (Reveyoso v Town Sports Int'l. LLC, 2018 NY Slip Op 32939[U], *7 [Sup Ct, NY County 2018]).

As an initial matter, Miller argues that Mrs. Greenman is not entitled to indemnification for the same reasons Miller was not entitled to indemnification. While Miller is correct that the Court's post-trial decision held "it was incumbent on Miller to distinguish and demonstrate the portion of his self-approved indemnification of litigation expenses that relate to Millman" and determined that he was not entitled to any indemnification under Millman's operating agreement based on the Court's finding that he failed to do so" (NYSCEF 564 at 40), Miller never sought indemnification in this action. As noted, Miller's indemnification was "self-approved" and the Court found that "as a fiduciary, Miller cannot so easily pass the evidentiary buck with respect to sorting out his admitted commingling of funds among distinct entities under his control" (NYSCEF 564 at 39).

In contrast, Mrs. Greenman's fee application is brought to the Court after a full trial on the merits of this action, and there was no finding of commingling of funds by Mrs. Greenman. To the extent Mrs. Greenman was not successful on all of her claims, she has set forth a good faith effort to apportion her fees according to those claims eligible for indemnification based on the provisions in the Millman and 392 Columbus operating agreements and, in turn, between those entities. Based on Mrs. Greenman's proposed method of apportionment (see NYSCEF 593 at 4-14), she allocates 60 percent of her fees incurred to the claims eligible for fee recovery.^[1]

Miller argues that Mrs. Greenman's proposed approach of allocating her fees on a percentage basis according to her eligible claims is not acceptable. However, when allocating attorneys' fees between compensable and non-compensable claims, courts regularly "make across-the-board percentage cuts in hours, as opposed to an item-by-item approach, to arrive at the reasonable hours expended" (United States ex rel. Nichols v Computer Seis. Corp., 499 F.Supp.3d 32, 41 [SDNY 2020]) "This is especially so where, as here, the length of the litigation makes it impracticable to perfectly separate out the hours dedicated to unsuccessful claims." (id., citing Fox v Vice, 563 U.S. 826, 838 [2011] ["The essential goal... is to do rough justice, not to achieve auditing perfection"]). Miller does not explain why it would be inappropriate for the Court to apply this approach here to allocate Mrs. Greenman's fees between those claims that are compensable, as well as between those claims that relate exclusively to 392 Columbus versus Millman. Based on the record and the Court's familiarity with the issues litigated throughout this case, the Court finds Mrs. Greenman's proposed apportionment appropriate.

Next while the Court considered Mr. Miller's...