DAVID REALTY AND FUNDING LLC v. Jay G. Seiden, Nonparty Respondent.

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Supreme Court, Appellate Division, First Department, New York.

DAVID REALTY AND FUNDING, LLC, Plaintiff-Appellant, v. SECOND AVENUE REALTY CO., et al., Defendants-Appellants, The People of the State of New York, et al., Defendants. Jay G. Seiden, Nonparty Respondent.

Decided: February 21, 2006

TOM, J.P., ANDRIAS, NARDELLI, MALONE, JJ. Vandenberg & Feliu, LLP, New York (Raymond L. Vandenberg of counsel), for appellants. Gaffin & Mayo, PC, New York (Dudley Gaffin of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Emily Jane Goodman, J.), entered May 20, 2005, which, in large part, granted respondent receiver's motion to confirm a Special Referee's report fixing the receiver's reasonable attorneys' fee, and awarded the receiver an attorneys' fee of $133,555, unanimously affirmed, without costs.

The Special Referee's findings, with the court's minor revisions, are substantially supported by the record (see Vastwin Invs. v. Aquarius Media Corporation, 295 A.D.2d 216, 217, 743 N.Y.S.2d 492 [2002], appeal dismissed 99 N.Y.2d 637, 760 N.Y.S.2d 91, 790 N.E.2d 264 [2003] ).   The Special Referee and the court properly employed their own knowledge, expertise and experience in determining the reasonableness of the fee (see Schoenau v. Lek, 283 A.D.2d 200, 724 N.Y.S.2d 305 [2001] ), and properly explained their elimination of certain hours billed (see Holskin v. 22 Prince St. Assoc., 178 A.D.2d 347, 348, 577 N.Y.S.2d 399 [1991] ).   Our recent decision in Jakubowicz v. Green Elec. Contrs., 25 A.D.3d 146, 803 N.Y.S.2d 71 [2005], limiting an hourly rate to $250 (see id. at 75), is distinguishable.   While that case involved the same attorney who here seeks a fee on behalf of his firm, he was there acting as the receiver, not as an attorney, and the rate of the attorney he had engaged was reduced where the fee was largely generated by out-of-court work, not appearances at a prolonged hearing.