Matter of Meyer v. Nassau County Police Dept.

Matter of Meyer v Nassau County Police Dept. 2026 NY Slip Op 05537 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. In the Matter of Howard Jay Meyer, et al., appellants, v Nassau County Police Department, respondent. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2024-09218, (Index No. 615920/23) Colleen D. Duffy, J.P. Paul Wooten Carl J. Landicino Susan Quirk, JJ. Aron Law, PLLC, Brooklyn, NY (Joseph H. Aron and Aviva Y. Horowitz of counsel), appellant pro se and for appellant Howard Jay Meyer. Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag of counsel), for respondent. [*1] DECISION & ORDER In a proceeding pursuant to CPLR article 78 to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorneys' fees and litigation costs, the petitioners appeal from a money judgment of the Supreme Court, Nassau County (Lisa A. Cairo, J.), entered August 28, 2024. The money judgment, insofar as appealed from, upon an order of the same court entered August 5, 2024, inter alia, directing that the petitioners were entitled to an award of attorneys' fees in the sum of $12,000, is in favor of the petitioners and against the Nassau County Police Department in the principal sum of only $12,000, representing an award of attorneys' fees. ORDERED that the money judgment is modified, on the facts and in the exercise of discretion, by deleting the provision thereof awarding the petitioners the principal sum of $12,000 in attorneys' fees, and substituting therefor a provision awarding the petitioners the principal sum of $34,690.50 in attorneys' fees; as so modified, the money judgment is affirmed insofar as appealed from, without costs or disbursements, and the order entered August 5, 2024, is modified accordingly. In November 2023, the petitioners commenced this proceeding against the Nassau County Police Department (hereinafter the Police Department) pursuant to CPLR article 78 to compel the Police Department to produce certain records pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6) and for an award of attorneys' fees and litigation costs. In a judgment entered March 14, 2024 (hereinafter the March 2024 judgment), the Supreme Court, inter alia, upon determining that the petitioners "substantially prevailed" and that the Police Department had no reasonable basis to deny access to certain records sought, directed the Police Department to "promptly" produce those records and directed that the petitioners were entitled to an award of attorneys' fees "in an amount to be determined" upon submission by the petitioners of an affirmation with billing records. More than two months later, the petitioners moved to hold the Police Department in contempt for failing to comply with the court's directive in the March 2024 judgment to promptly produce the records at issue. A few weeks later, the Police Department produced redacted versions of the requested records, and the petitioners submitted a letter to the court challenging the redactions. Thereafter, the petitioners submitted an amended affirmation of attorneys' fees and costs, seeking an award of attorneys' fees in the sum of $38,493. The Police [*2]Department did not submit papers in opposition. In an order entered August 5, 2024, the Supreme Court, among other things, directed that the petitioners were entitled to an award of attorneys' fees in the sum of only $12,000. Thereafter, upon that order, a money judgment was entered on August 28, 2024, inter alia, in favor of the petitioners and against the Police Department in the principal sum of $12,000, representing an award of attorneys' fees. The petitioners appeal. A court shall award attorneys' fees to a litigant who has "substantially prevailed" in a FOIL case where the court also determines that "the agency had no reasonable basis for denying access" to the records sought (id. § 89[4][c]; see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 78-79). Here, the Police Department does not dispute that the petitioners were entitled to an award of attorneys' fees under the statute. "The attorney [seeking an award of attorneys' fees] bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community" (Neeman v Smith, 227 AD3d 818, 821 [internal quotation marks omitted]; see Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1036). Here, the petitioners submitted an amended affirmation regarding the time and expenses they incurred and included an itemized bill of attorney hours expended. The attorneys' fees sought were based on a total number of hours worked of 65.8 at a rate of $585 per hour. Although the determination of what constitutes a reasonable award of attorneys' fees is a matter within the sound discretion of the Supreme Court (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d at 80), courts should consider factors such as the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability, and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged for similar services; the contingency or certainty of compensation; and the results obtained and responsibility involved (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839). Under the circumstances of this case, we find that the Supreme Court improvidently exercised its discretion in reducing the amount of attorneys' fees sought to only $12,000. The court failed to explain how it determined the amount of this fee award, and upon our independent assessment of the record, the petitioners' submissions established that the hourly rate sought was customary in similar FOIL matters and that the time they expended prosecuting the FOIL claim, including in connection with the petitioners' motion to hold the Police Department in contempt for failing to timely produce responsive documents and their challenge to excessive redacting, was reasonable (see Matter of Sethi v Town of Hempstead, 233 AD3d 787, 789). We note that the petitioners were not entitled to recover for time they spent on fee collection, which totaled $3,802.50, the equivalent of 6.5 hours (see Matter of Aron Law, PLLC v New York City Fire Dept., 239 AD3d 972, 973). Accordingly, the money judgment should be modified so as to award attorneys' fees to the petitioners in the principal sum of $34,690.50, and the order entered August 5, 2024, should be modified accordingly. DUFFY, J.P., WOOTEN, LANDICINO and QUIRK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court