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INDEX No. 154808/2013
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`INDEX NO. 154808/2013INDEX NO. 154808/2013
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`FILED: NEW YORK COUNTY CLERK 07/18/2017 10:56 AMFILED: NEW YORK COUNTY CLERK 07/27/2017 11:17 AM
`l
`FILED: NEW YORK COTY CLERK 07017 10:5 A
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`
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`
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`NYSCEF DOC. NO. 179
`R«.C«.IV«.D \IYSCEF: 07/28/2017
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`NYSCEF DOC. NO. 177NYSCEF DOC. NO. 179
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`RECEIVED NYSCEF: 07/18/2017RECEIVED NYSCEF: 07/27/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
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`NEW YORK COUNTY
`
`PRESENT: Hon. Nancy M. Bannon
`Justice
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`PART 4;
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`WALID MOHAMED, et al.
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`- v -
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`CITY OF NEW YORK, et al.
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`INDEX NO. 154808I2013
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`MOTION DATE
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`7/12/2017
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`MOTION SEQ. NO.
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`008
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`INTERIM ORDER
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`The following papers were read on this motion for an award of attorneys’ fees:
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`Notice of Motion/ Order to Show Cause — Affirmation — Affidavit(s) —
`Exhibits — Memorandum of Law-------------------------------------------------------------
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`No(s).____1____
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`Answering Affirmation(s) — Affidavit(s) — Exhibits ----------------------------------
`
`No(s).
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`Replying Affirmation — Affidavit(s) -—- Exhibits -----------------------------------------
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`No(s).
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`2
`
`3
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`In this action, inter alia, pursuant to 42 USC § 1983 to recover damages for the violation of the
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`plaintiff’s constitutional rights under color of state law, the plaintiff moves pursuant to 42 USC § 1988
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`for an award of a reasonable attorney’s fee, costs, and disbursements. The defendants oppose the
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`motion. The motion is granted to the extent that the plaintiff is awarded attorney's fees at the hourly
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`billing rate of $450 per hour for the time expended by attorney Aymen Aboushi and $400 per hour for
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`the time expended by attorney Tahanie Aboushi in prosecuting this action, up to and including the court
`
`appearance of July 12, 2017, plus costs and disbursements, and the matter is referred to a referee to
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`hear and report on the number of hours that were reasonably expended by those attorneys.
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`The infant plaintiff—an autistic teenager—was forcibly removed from his family’s home by
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`several officers of the New York City Police Department. On December 9, 2016, after a highly
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`contested 20-day jury trial, the jury found that three of the officers assaulted, battered, and violated the
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`Fourth Amendment rights of the infant plaintiff by using excessive force. The jury awarded him the
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`sums of $3,000 in compensatory damages for past pain and suffering, $30,000 in compensatory
`
`damages for past emotional distress, $750,000 in compensatory damages for future emotional distress
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`over 50 years, $10,000 in punitive damages against the defendant Steven Hernandez, and $5,000 in
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`punitive damages against each of the defendants George Santana and Robert Larocco. Under the
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`theory of respondeat superior, the City is vicariously liable for the assault and battery committed by
`those police officers. See Linson v City of New York, 98 AD3d 1002 (2nd Dept. 2012).
`
`42 USC § 1988 authorizes a court to award a reasonable attorneys’ fees and costs to the
`
`prevailing party in an action commenced pursuant to 42 USC § 1983. “Congress recognized that
`attorney’s fees are an integral part of the remedy necessary to achieve compliance with civil rights laws
`
`such as 42 USC § 1983.
`
`In furtherance of that goal, Congress enacted the Civil Rights Attorney's
`
`Fees Awards Act in 1976.” Matter of Thomasel v Perales, 78 NY2d 561, 567 (1991) (citations and
`
`
`
`FORTHEFOLLOWINGREASON(S):
`
`
`
`MOTION/CASEISRESPECTFULLYREFERREDTOJUSTICE
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`Pagelof 3
`1 of 3
`1 of 3
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`#fNDEX NO .
`1 5'4 8W372'0 l 3
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`INDEX NO. 154808/2013INDEX NO. 154808/2013
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`FILED: NEW YORK COUNTY CLERK 07/18/2017 10:56 AMFILED: NEW YORK COUNTY CLERK 07/27/2017 11:17 AM
` FILED: NEPTYORK COTY CLERK 07-2017 ”use A
`
`l
`
`
`
`
`
`NYSCEF DOC. NO. 179
`R«.C«.IV«.D \IYSCEF: 07/28/2017
`
`NYSCEF DOC. NO. 177NYSCEF DOC. NO. 179
`
`RECEIVED NYSCEF: 07/18/2017RECEIVED NYSCEF: 07/27/2017
`
`internal quotation marks omitted). “In keeping with this remedial objective [the Court of Appeals has]
`
`liberally construed section 1988. While the statute intones ‘discretion,’ the legislative history and judicial
`
`precedents emphasize that [a] party seeking to enforce the rights protected by the statutes covered by
`
`[section 1988], if successful, should ordinarily recover an attorney's fee unless special circumstances
`
`would render such an award unjust.” Q; fl Matter of Johnson v Blum, 58 NY2d 454 (1983).
`
`To be considered a prevailing party, the party need only “be able to point to a resolution of the
`
`dispute which changes the legal relationship between” himself or herself and the defendants. Ms
`
`State Teachers Assoc. v Garland Ind. Sch. Dist, 489 US 782, 792 (1989). The plaintiff is clearly the
`
`prevailing party here. fl Cardoza v City of New York, 139 AD3d 151 (1St Dept. 2016). The plaintiff
`
`need not succeed on all of his claims to be entitled to a complete recovery of an attorney’s fee.
`
`§_e_e_
`
`Leblanc-Sternberg v Fletcher, 143 F3d 748 (2nd Cir. 1998). While “[n]o fees should be awarded for
`
`time spent pursuing a failed claim if it was ‘unrelated’ to the plaintiff’s successful claims,” a fee award is
`
`warranted when a plaintiff achieves “substantial relief” and should be based upon counsel's time spent
`
`on all claims involving a common core of facts and related legal theories. fl, quoting Hensley v
`
`Eckerhart, 461 US 424, 434-35 (1983). Where, as here, the claims involve the same common core of
`
`facts and related legal theories, and the plaintiff obtained a substantial jury verdict in his favor on his
`
`claims that his rights were violated, he is entitled to an award for all of his attorneys’ time that was
`
`reasonably expended in prosecuting the action. _S_e_e Cardoza v City of New York, supra.
`
`A reasonable fee is a fee that is “sufficient to induce a capable attorney to undertake the
`
`representation in a meritorious civil rights case.” Perdue v Kenny A. ex rel. Winn, 559 US 542, 552
`
`(2010). The hourly billing rates requested by the plaintiff’s attorneys reasonably reflect their training,
`
`experience, and ability in the field of civil rights litigation, and are within the range of rates that are
`
`typically charged by civil rights attorneys in the New York City metropolitan area. fl Arbor Hill
`Concerned Citizens Neighborhood Assoc. v County of Albany, 522 F3d 182 (2nd Cir. 2008).
`
`Accordingly, it is
`
`ORDERED that the plaintiff's motion for an award of attorney’s fees, costs, and disbursements
`
`is granted to the extent that the plaintiff is awarded attorney’s fees at the hourly billing rate of $450 per
`
`hour for the time expended by attorney Aymen Aboushi and $400 per hour for the time expended by
`
`attorney Tahanie Aboushi in prosecuting this action, up to and including the court appearance of July
`
`12, 2017, plus costs and disbursements; and it is further,
`
`ORDERED that a Judicial Hearing Officer (“JHO”) or Special Referee shall be designated to
`
`hear and report to this Court on the following individual issues of fact, which are hereby submitted to
`
`the JHO/Special Referee for such purpose:
`
`1.
`
`2.
`
`the issue of the number of hours reasonably expended by the plaintiff’s attorneys in
`
`prosecuting this action, up to and including the court appearance of July 12, 2017; and
`
`the issue of the amount of costs and disbursements properly recoverable; and it is
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`further,
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`Page 2 of 3
`20f3
`2 of 3
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`

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`FILED: NEW YORK COUNTY CLERK 07-2617 1m:53 ,
`l
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`FILED: NEW YORK COUNTY CLERK 07/18/2017 10:56 AMFILED: NEW YORK COUNTY CLERK 07/27/2017 11:17 AM
`
`NYSCEF DOC. NO. 179
`
`NYSCEF DOC. NO. 177NYSCEF DOC. NO. 179
`
`INDEX NO. 154808/2013INDEX NO. 154808/2013
`
`'
`'INBEX N0I154808/2013
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`
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 07/28/2017
`
`RECEIVED NYSCEF: 07/18/2017RECEIVED NYSCEF: 07/27/2017
`
`ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119M, 646-
`386-3028 or spref@nycourts.gov) for placement at the earliest possible date upon which the calendar
`of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are
`posted on the website of this court at www.nycourts.gov/supctmanh at the “References” link under
`”Courthouse Procedures”), shall assign this matter to an available JHO/Special Referee to hear and
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`report as specified above; and it is further,
`
`ORDERED that counsel shall immediately consult one another and counsel for plaintiff shall,
`within 15 days from the date of this Order, submit to the Special Referee Clerk by fax (212-401-9186)
`or email, an Information Sheet (which can be accessed at the “References” link on the court's website)
`containing all the information called for therein and that, as soon as practical thereafter, the Special
`Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter
`
`upon the calendar of the Special Referees Part; and it is further,
`
`ORDERED that the plaintiff shall serve a proposed accounting within 24 days from the date of
`this order and the defendants shall serve objections to the proposed accounting within 20 days from
`service of plaintiff’s papers, and the foregoing papers shall be filed with the Special Referee Clerk at
`least one day prior to the original appearance date in Part SRP fixed by the Clerk as set forth above;
`and it is further,
`
`ORDERED that the parties shall appear for the reference hearing, including with all witnesses
`and evidence they seek to present, and shall be ready to proceed, on the date first fixed by the Special
`Referee Clerk subject only to any adjournment that may be authorized by the Special Referees Part in
`accordance with the Rules of that Part; and it is further,
`
`ORDERED that the hearing will be conducted in the same manner as a trial before a Justice
`without a jury (CPLR 4320[a]) (the proceeding will be recorded by a court reporter, the rules of
`evidence apply, etc.) and, except as othenNise directed by the assigned JHO/Special Referee for good
`cause shown, the trial of the issues specified above shall proceed from day to day until completion; and
`
`it is further,
`
`ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall
`be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform
`
`Rules for the Trial Courts.
`
`This constitutes the Decision and Order of the court.
`
`HON. NANC M. BANNON
`,
`,
`1. Check one: ...........................1.... CASE DISPOSED .fiNON-FINAL'DI‘SPOSITION
`2. Check as appropriate: MOTION IS: I GRANTED
`.
`,5 DENIED .
`1 OTHER
`
`
`
` , JSC
`
`Page 3 of 3
`30f3
`3 of 3
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`

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