Independence Project, Inc. v. Ventresca Bros. Constr. Co.

397 F.Supp.3d 482

THE INDEPENDENCE PROJECT, INC., Plaintiff,

v.VENTRESCA BROS. CONSTRUCTION CO., INC., Defendant.

Ventresca Bros. Construction Co, Inc., Third-Party Plaintiff,

v.Lawrence A. Fuller; Lawrence Feltzin; Fuller, Fuller & Associates, P.A.; and BRAFF, Harris, Sukoneck & Maloof, Third-Party Defendants.

No. 18-CV-2748 (KMK)

United States District Court, S.D. New York.

Signed August 30, 2019

Lawrence A. Fuller, Esq., Fuller & Fuller & Associates, North Miami, FL, Counsel for Plaintiff and Third-Party Defendant The Independence Project, Inc., and Third-Party Defendant Lawrence Feltzin,

Keith Harris, Esq., Braff Harris Sukoneck & Maloof, Livingston, NJ, Counsel for Plaintiff and Third-Party Defendant The Independence Project, Inc.

Steven B. Blau, Esq., Shelly A. Leonard, Esq., Blau Leonard Law Group, Huntington, NY, Counsel for Defendant and Third-Party Plaintiff Ventresca Bros. Construction, Inc.

Jill L. Zibkow, Esq., Gallo Vitucci Klar LLP, New York, NY, Counsel for Third-Party Defendants Lawrence A. Fuller, and Fuller, Fuller & Associates, P.A.

OPINION & ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE

The Independence Project, Inc. ("Plaintiff") brought this action against Defendant Ventresca Bros. Construction, Inc. ("Defendant" or "Third-Party Plaintiff"), on behalf of its member Lawrence Feltzin ("Feltzin"), alleging that Defendant owns and leases a venue that is not in compliance with the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (Compl. (Dkt. No. 1).) Defendant brought counterclaims against Feltzin and Plaintiff's attorneys, Lawrence A. Fuller, Esq. ("Fuller"), Fuller, Fuller, & Associates, P.A. ("Fuller Firm"), and Braff, Harris, Sukoneck, & Maloof ("Braff Firm") (collectively, "Third-Party Defendants"), alleging that the attorneys and Plaintiff intentionally misled the Court by asserting that Feltzin was a paraplegic. (See generally Answer (Dkt. No. 22); Def.'s Third-Party Compl. ("Third-Party Compl.") (Dkt. No. 31).) In an Order of Dismissal dated February 5, 2019, the Court, having been advised that all claims asserted had been settled, dismissed with prejudice Plaintiff's main Action and Defendant's Third-Party Action. (See Order of Dismissal (Dkt. No. 72).) Presently before the Court is Plaintiff's Motion for Attorneys' Fees and Costs pursuant to 42 U.S.C. § 12205. (See generally Pl.'s Application for Attys' Fees and Expert Fees and Incorporated Mem. of Law ("Pl.'s Mem.") (Dkt. No. 77).) For the reasons stated herein, the Motion is granted as modified.

I. Background

Plaintiff is a non-profit corporation, formed under the laws of New Jersey, whose members include individuals with disabilities. (Compl. ¶ 5.) The organization's purpose is to ensure that public accommodations are "accessible and usable by the disabled and that its members are not discriminated against because of their disabilities." (Id. ) Defendant, a New York Corporation, owns and leases a strip mall, Mid Central Shopping Plaza, in Hartsdale, New York. (Id. ¶ 8.)

Feltzin, a resident of Florida, is a member of Plaintiff and is disabled, as defined by the ADA. (Id. ¶ 5.) He is a paraplegic and uses a wheelchair to ambulate. (Id. ¶ 5.) He frequently visits his family in Manhattan and travels to places of public accommodation in Westchester County. (Id. ¶ 6.) Feltzin travels to various public accommodations to confirm that they comply with the ADA. (Id. ¶ 7.) He often initiates lawsuits to bring about compliance. (Id. ) Feltzin traveled to Defendant's property and observed several ADA violations. (Id. ¶ 9–10.) A preliminary inspection of the property showed that ADA violations existed in relation to parking and exterior accessibility, access to goods and services, restrooms, and maintenance. (Id. ¶ 11.) Plaintiff alleges that Defendant discriminated against Plaintiff's members by denying them access to full and equal enjoyment of the goods, services, facilities, privileges, and accommodations of its place of public accommodation. (Id. ¶ 14.)¹

On March 28, 2018, Plaintiff filed its Complaint against Defendant. (Compl.) On October 29, 2018, Defendant filed an Answer, denying that the facility was in violation of the ADA and advancing approximately 40 Affirmative Defenses. (See generally Answer.) On November 20, 2018, Defendant brought counterclaims alleging that Third-Party Defendants intentionally misled the Court by asserting that Feltzin was a paraplegic. (See generally Third-Party Compl.) The Fuller Firm is a Florida corporation, and the Braff Firm is a New Jersey corporation. (Third-Party Compl. ¶¶ 14, 17.) Defendant accused Plaintiff of engaging in an intentional and systematic scheme to extort monetary settlements from small business owners under circumstances wherein the alleged ADA violations are frivolous and without legal or factual basis. (Id. ¶ 54.)

The parties settled the case and the Court dismissed the Action on February 5, 2019. (Order of Dismissal.) In the Settlement Agreement, the Parties denied any liability arising out of the Complaint and Third-Party Complaint. (Settlement Agreement ¶ 4 (Dkt. No. 75-1).) The Settlement mandated that "[a]ll alleged violations requiring alterations and/or modifications, as described in the Complaint ... shall be completed prior to the inspection date [of September 30, 2019.]" (Id. ¶¶ 9, 11.) The Agreement also provided that "within seven ... days of the execution of this Agreement, the parties will file a Stipulation of Dismissal ... which shall state that the dismissal is subject to the Court retaining jurisdiction to enforce, as necessary, the terms of the Settlement Agreement ...." (Id. ¶ 12.) Additionally, the Agreement provided that "the Court shall retain jurisdiction to enforce, as necessary, the terms of this Settlement [ ], and to determine the amount of attorneys' fees, costs, and expert fees." (Id. ¶ 14.) The Court did not play any role in the resolution of the suit and did not oversee any settlement conferences. (Def.'s Mem. in Opp. to Pl.'s Mot. for Attys' Fees ("Def.'s Mem.") at 2 (Dkt. No. 78).) On February 26, 2019, the Court entered an Order approving the Settlement Agreement. (Court's Endorsement of Settlement ("So-Ordered Settlement") (Dkt. No. 76).) On March 1, 2019, Plaintiff filed the instant Motion and supporting papers, seeking attorneys' fees and associated costs of $32,520 pursuant to 42 U.S.C. § 12205. (See Pl.'s Mem. 3, 20.) On March 25, 2019, Defendant filed its opposition papers. (Def.'s Mem.)

II. Discussion

Defendant opposes Plaintiff's Motion on the grounds that (1) Plaintiff was not a prevailing party, and (2) even if considered the prevailing party, Plaintiff's account of fees includes inflated billed hours that were "excessive, redundant, or otherwise unnecessary." (Def.'s Mem. 16–17.)

A. Prevailing Party

"Before deciding whether an award of attorney's fees is appropriate in a given case, ... a court must determine whether the party seeking fees has prevailed in the litigation."

CRST Van Expedited, Inc. v. E.E.O.C. , ––– U.S. ––––, 136 S. Ct. 1642, 1646, 194 L.Ed.2d 707 (2016) (citation omitted). For a plaintiff to recover attorneys' fees under 42 U.S.C. § 12205, it must be the prevailing party. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. , 532 U.S. 598, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). To be considered a prevailing party, the plaintiff must achieve a material, judicially-sanctioned alteration of the legal relationship that favors it. See Perez v. Westchester Cty. Dep't of Corr. , 587 F.3d 143, 149 (2d Cir. 2009). The material alteration of the legal relationship of the parties must be more than just a catalyst bringing about voluntary change; the change must be awarded by the court. See Buckhannon , 532 U.S. at 598–99, 121 S.Ct. 1835 (holding that "a defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change"); N.Y. State Fed'n of Taxi Drivers, Inc. v. Westchester Cty. Taxi & Limousine Comm'n , 272 F.3d 154, 157–58 (2d Cir. 2001) (noting that although a "lawsuit sometimes produces voluntary action by the defendant", "[f]or a plaintiff to be considered a prevailing party ..., the plaintiff's lawsuit must be a catalytic, necessary, or substantial factor in attaining the relief" (citations and quotation marks omitted)).

Courts in the Second Circuit ask whether a party has prevailed based on the "materiality of a judicial outcome" and "whether the result is purely procedural or whether it actually accomplishes something substantive for the winning party." Preservation Coal. of Erie Cty. v. Fed. Transit Admin. , 356 F.3d 444, 451–52 (2d Cir. 2004) (citation omitted). A plaintiff who achieves relief as a result of a settlement may be considered a prevailing party if the relief obtained was the same general type as the relief sought. See Lyte v. Sara Lee Corp. , 950 F.2d 101, 104 (2d Cir. 1991). "Under the ADA, consent decrees may serve as the basis for an award of attorney's fees. Although consent decrees do not always contain an admission of liability, they nonetheless effectuate a change in the legal relationship of the parties ... ‘[and therefore] create the material alteration of the legal relationship of the parties necessary to permit an award of attorney's fees.’ " Lazarus v. County of Sullivan , 269 F. Supp. 2d 419, 421 (S.D.N.Y. 2003) (citing Buckhannon , 532 U.S. at 604, 121 S.Ct. 1835 ) (italics omitted).

When a district court retains jurisdiction over the enforcement of a settlement agreement, "the situation is ‘not significantly different from a consent decree and entails a level of judicial sanction sufficient to support an award of attorney's fees.’ " Brown v. Green 317 Madison, LLC , No. 11-CV-4466, 2014 WL 1237448, at *3 (E.D.N.Y. Feb. 4, 2014) (quoting Roberson v. Giuliani , 346 F.3d 75, 82 (2d Cir. 2003) ), adopted by 2014 WL 1237127 (E.D.N.Y. ...