Opinion
June 13, 1991
Appeal from the Supreme Court, Albany County (Prior Jr., J.).
In October 1980 plaintiffs, John Giarrusso (hereinafter plaintiff) and his brother, Carl Giarrusso, commenced suit against defendants, the City of Albany, its police department and Officer Richard P. Maniscalco, for false arrest, malicious prosecution and violation of plaintiffs' civil rights under 42 U.S.C. § 1983. Following a trial in October 1988, the jury returned a verdict in favor of plaintiff in the amount of $12,000 on his false arrest claim and $12,000 on his 42 U.S.C. § 1983 claim. Plaintiff was also awarded $13,000 in punitive damages against Maniscalco. Thereafter, plaintiff moved for counsel fees pursuant to 42 U.S.C. § 1988 in the amount of $48,656.25 and defendants cross-moved to set aside the award of punitive damages. Supreme Court denied plaintiff's application for counsel fees and granted defendants' motion. Plaintiff now appeals from that part of the order denying his application for counsel fees.
The prevailing party in an action or proceeding brought pursuant to 42 U.S.C. § 1983 "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust" (Newman v Piggie Park Enters., 390 U.S. 400, 402). Because defendants have failed to meet their burden of establishing special circumstances (see, supra; Matter of Johnson v Blum, 58 N.Y.2d 454, 457, n 1, 458; Matter of Campain v Marlboro Cent. School Dist. Bd. of Educ., 138 A.D.2d 914, 914-915; State Communities Aid Assn. v Regan, 112 A.D.2d 681, 683-684, appeal dismissed 66 N.Y.2d 759, appeal dismissed, lv denied 69 N.Y.2d 821), Supreme Court abused its discretion in denying plaintiff's application for counsel fees (see, State Communities Aid Assn. v Regan, supra, at 684; cf., Annunziato v The Gan, 744 F.2d 244, 253-254). The criticism raised by Supreme Court that the case "could have been successfully prosecuted [more quickly] and with significantly less legal work", while relevant in determining the amount of counsel fees to be awarded to plaintiff, does not affect plaintiff's entitlement to such an award. Therefore, the case should be remitted to Supreme Court so that reasonable counsel fees can be determined in accordance with the factors and considerations set forth in Matter of Rahmey v Blum ( 95 A.D.2d 294) (see, Matter of Johnson v Blum, supra; see also, United States Football League v National Football League, 887 F.2d 408, 415, cert denied 493 U.S. 1071; Johnson v Georgia Highway Express, 488 F.2d 714).
In determining the reasonableness of the hours claimed, the court should ordinarily require contemporaneous time records (see, Matter of Rahmey v Blum, supra, at 300; but see, Matter of Karp [Cooper], 145 A.D.2d 208, 216 ) and may call upon its own knowledge and experience (see, Matter of Rahmey v Blum, supra). The hours reasonably spent on the fee application (supra, at 301) and in litigating an appeal (see, Perkins v Town of Huntington, 117 A.D.2d 726, 727) are compensable, but the court may consider whether the time devoted to these functions was unreasonable in view of the circumstances of the case (see, Matter of Rahmey v Blum, supra, at 300-301). Contrary to defendants' assertion, a contingent fee agreement does not impose an automatic ceiling on an award of counsel fees but may aid in determining reasonableness (see, Blanchard v Bergeron, 489 U.S. 87, 93). Finally, given the relatively straightforward nature of this case, there does not appear to be any justification for an upward adjustment in the "lodestar figure", which represents "the product of reasonable hours times a reasonable rate" (Pennsylvania v Delaware Val. Citizens' Council, 478 U.S. 546, 565; see, Blum v Stenson, 465 U.S. 886, 899; Krieger v Gold Bond Bldg. Prods., 863 F.2d 1091, 1099).
Mahoney, P.J., Levine, Crew III and Harvey, JJ., concur. Ordered that the order is modified, on the law, with costs to plaintiff John Giarrusso, by reversing so much thereof as denied said plaintiff's motion; matter remitted to the Supreme Court for further proceedings not inconsistent with this court's decision; and, as so modified, affirmed.