Carlos Rodriguez, Plaintiff, v. KONSTANTINOS VORILLAS 2528 CRUGER AVENUE CORP (2022)

In this Labor Law action, plaintiff moves for an award of attorney fees, as provided for in this court's prior order granting plaintiff summary judgment. (See NYSCEF No. 103.) Defendants have not opposed plaintiff's fee motion.

Plaintiff supports the fee application with an affidavit from the attorney who billed hours on the action, along with detailed time records. (See NYSCEF Nos. 113-114; see also NYSCEF No. 112 [memorandum of law].) As a prevailing employee, plaintiff is entitled to reasonable attorney fees under Labor Law §§ 198 and 663. This court is satisfied that the claimed rates of plaintiff's counsel and his assisting paralegal/interpreter are reasonable. Plaintiff's time records sufficiently justify the time billed on this case, which involved considerable discovery and discovery-related motion practice, as well as a summary-judgment motion presenting complicated issues relating to whether plaintiff was an employee or an independent contractor.

One issue requires further discussion. Plaintiff seeks to recover the fees incurred by counsel in preparing the current fee application—so-called "fees on fees." (See NYSCEF No. 114 at 1.) Fees on fees, however, are available only where they are permitted in "unmistakably clear" terms by the applicable fee-shifting statutory or contractual provision. (546-552 W. 146th St. LLC v Arfa, 99 AD3d 117, 122 [1st Dept 2012]; see also Valentini v 326 E. 30th St. Owners, Inc., 2022 NY Slip Op 50840[U], at *2 [Sup Ct, NY County Aug. 29, 2022] [granting charging lien in an amount incorporating fees on fees, because underlying retainer agreement made client "responsible for . . . reasonable attorneys' fees and disbursements" in the event of "a proceeding to collect . . . unpaid fees"].)

Plaintiff's motion papers do not address the issue of fees on fees. Nor has this court found any appellate precedent addressing whether they are available under Labor Law §§ 198 and 663. (Cf. Erin-Louise House v Slow Food, LLC, 2021 WL 4325675, at *10 [Sup Ct, NY County] [decision of special referee] [noting that prevailing plaintiffs "conced[ed] in their brief that there is no basis to award fees on fees under Labor Law § 198 [1-a]," without addressing the availability of such fees absent a party's concession].) But the Appellate Division, Second Department, has held, interpreting the fee-shifting provision of Labor Law § 740 (6), that fees on fees are not available under that provision. (Tomo v Episcopal Health Servs., Inc., 112 AD3d 612, 614 [2d Dept 2013].) The language of § 740 (6), which permits a court to award "reasonable attorneys' fees and court costs and disbursements" in some circumstances, is very similar to that of the provisions relied on here, which both refer to "reasonable attorney fees." (Labor Law §§ 198 [1-a]; 663 [1].)

This court concludes, therefore, that fees on fees are not available under these fee-shifting provisions of the Labor Law. The hours billed by counsel on the current fee application are therefore not recoverable, and will be excluded from the fees requested by plaintiff.

Accordingly, it is

ORDERED that plaintiff's motion for an award of attorney fees is granted only to the extent of awarding attorney fees in the amount of $36,490, and otherwise denied, and plaintiff is awarded a supplemental money judgment against the remaining defendants in that amount; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly.

DATE 12/19/2022

Gerald Lebovits, J.