For a judgment under Article 78 of the Civil Practice Law and Rules Petitioner made a request under the Freedom of Information Law (Public Officers Law Article 6) for the production of certain records pertaining to Nassau County’s photo speed monitoring system. The request was denied, and after exhausting administrative remedies, petitioner commenced this proceeding pursuant to CPLR Article 78 to compel the production of the records. The petition was initially denied and dismissed, however, by order dated February 7, 2018, the Appellate Division, Second Department reversed. By order dated December 7, 2018, petitioner’s motion for reasonable attorney’s fees pursuant to Public Officers Law §89, was granted and this matter was set down for a hearing to determine the amount of attorney’s fees due.Petitioner seeks $75,000.00 in attorneys’ fees representing the fee for less than the 175.85 hours of alleged legal work. Petitioner testified that this time represents his work in preparing the initial Freedom of Information Law (“FOIL”) request, getting a response, preparing an appeal, preparing the Article 78 proceeding, taking an appeal, preparation of the record, appellant’s brief, reply, and miscellaneous work. Respondents oppose the amount of attorneys’ fees sought and seek a reduction on the grounds that petitioner’s claimed hourly rates are excessively high, that the number of hours claimed to have been worked is excessive, and that certain claimed costs should be eliminated.Public Officers Law §89(4)[c] states, in relevant part, that “[t]he court…shall assess, against such agency involved, reasonable attorney’s fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access.” Reasonable attorneys’ fees are determined by using the “lodestar” method, which calculates an initial estimate of attorneys’ fees by multiplying the number of reasonable hours spent on the litigation by a reasonable hourly rate (see Hensley v. Eckerhart, 461 US 424 [1983]). Among the factors the court may consider in determining whether adjustments to the lodestar estimate are appropriate are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases (see McGrath v. Toys “R” Us, Inc., 3 NY3d 421, 426, n 1 [2004], quoting Hensley, 461 US at 430 n3).Turning to the hourly rate, the rate charged should be “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, expertise and reputation” (Blum v. Stenson, 465 US 886, 895-96 n11 [1984]; accord Reiter v. MTA N.Y.C. Tr. Auth., 457 F3d 224, 232 [2d Cir 2006]). Courts should consider the rates approved in other cases in the district as well as any evidence offered by the parties (see Farbotko v. Clinton County, 433 F3d 204, 208-09 [2d Cir 2005]). It is within the Court’s discretion to determine what constitutes a reasonable attorney’s fee, and the attorney bears the burden of establishing the value of the services rendered (see Lancer Indem. Co. v. JKH Realty Grp., LLC, 127 AD3d 1035, 1035-36 [2015]).Petitioner seeks to bill for his work at a rate of $450 per hour, and testified that he generally charges $500 per hour for similar work. Petitioner was admitted to practice in the State of New York on September 4, 2013, thirteen months prior to making the FOIL request that is the subject of this action. He commenced the instant proceeding on April 20, 2015, and testified that he started charging $500 per hour in 2014 or 2015.At the hearing, petitioner failed to submit any evidence establishing what the prevailing rates were in the community for similar lawyers of comparable skill, aside from testifying to his customary hourly rate for similar work (see Gamache v. Steinhaus, 7 AD3d 525, 527 [2004][attorneys' own self-serving statements regarding their regular hourly rate are insufficient to meet their burden that said rate is reasonable]). Petitioner also does not meet his burden in a brief submitted subsequent to the hearing. Petitioner refers to Gedan v. Town of Mamaroneck, 170 AD3d 833, 834 (2019), in which an attorney was awarded $27,000 in a FOIL proceeding that did not involve an appeal, as a means of justifying his fee. Petitioner however does not elaborate on what the case entailed, the hours expended, what hourly rate was awarded, or the experience of the attorney involved. The other cases petitioner cites to do not support his request for fees at a rate of $450 per hour (see Competitive Enter. Inst. v. Atty. Gen. of New York, 56 Misc3d 569, 572 [Sup Ct, Albany County 2017][attorney's fees in a FOIL proceeding reduced from rate of $450 per hour to $300 as more in line with hourly rate for an associate]; Barbour v. City of White Plains, 788 F Supp2d 216, 225 [SDNY 2011][$450 per hour awarded to civil rights attorney with 22 years of experience, and $625 per hour awarded to attorney with experience litigating approximately 150 civil-rights cases, who further submitted declarations from three attorneys attesting that their hourly rates matched the rate sought, as well as statistical reports indicating the range of hourly rates for attorneys in the district, and where there was no objection from claimant's adversary]). Here, petitioner testified that he had only worked on a handful of article 78 proceedings prior to commencing this action, and that this proceeding was commenced less than two years after he was admitted in this state.Petitioner argues that his hourly rate is supported by the Laffey Matrix, a database for assessing legal fees in the Washington-Baltimore area. A review of its hourly rate breakdown when compared to experience level reflects an hourly rate ranging from $328 when he made the initial FOIL request to $455 at the time this matter was set for this hearing. Similarly, the United States Consumer Law Attorney Survey, 2015-16 which petitioner also references, lists the “Average Attorney Hourly Rate” for an attorney in New York City with 0-5 years experience as $300 per hour. Petitioner’s attempt, subsequent to the hearing, to establish his reasonable hourly rate through the affidavits of three other attorneys who have retained his services was properly objected to by respondents as it was petitioner’s initial burden to establish same at the hearing. Based upon a consideration of the above, the Court determines that a rate of $350 per hour is fair and reasonable compensation for petitioner.The Court finds, however, that lodestar, or the product of the reasonable rate times the reasonable hours, results in an excessive fee award based on the 175.85 hours billed by petitioner. In assessing the reasonableness of a fee application, a court is not required to employ a line-by-line review of the billing records (see New York State Ass’n For Retarded Children, Inc. v. Carey, 711 F2d 1136, 1146 [2d Cir 1983]), but may instead exercise its discretion if it finds that time spent was wasteful or otherwise unnecessary and may instead use a percentage reduction as a practical means of “trimming fat” (see RMP Capital, Corp. v. Victory Jet, LLC, 40 Misc 3d 1243 [A], *10 [2013]; Marion S. Mishkin Law Office v. Lopalo, 767 F3d 144, 150 [2d Cir 2014]; Quarantino v. Tiffany & Co., 166 F3d 422, 425 [2d Cir 2009]).The court is not bound to accept an attorney’s face value summary of the hours they expended on legal matters, and hours which reflect duplication of services, inefficiency, or padding, are to be disallowed (see Matter of Vitole, 215 AD2d 765 [1995]; Rahmey v. Blum, 95 AD2d 294, 300-01 [1983]). Here, an across-the-board 50 percent deduction is appropriate for the following reasons.A review of petitioner’s time sheet reveals numerous instances where petitioner should not be compensated at his full hourly rate. First, in assessing attorney’s fees, it is appropriate to distinguish between legal work and non-legal work such as clerical work which may be accomplished by non-lawyers, but which a lawyer may do because he has no other help available (see Francis v. Atl. Infiniti, Ltd., 34 Misc 3d 1221 [A] [Sup Ct, Queens County 2012]; see Pinkston v. Weinberg, 97 AD2d 550, 551 [1983]). Such non-legal work may be compensated at a lesser rate, and its value is not enhanced simply because a lawyer does it (see Id).Here, petitioner billed for 23.5 hours of administrative tasks. When questioned, petitioner testified that tasks such as preparing blue backs, affidavits of service, labeling envelopes, filing, binding, scanning, etc., could be administrative tasks in certain circumstances, but he nevertheless charged the same rate for all the work he performed. Likewise, petitioner also charged 12.8 hours of travel time which should not be calculated at his normal hourly rate (see Id; Rourke v. New York State Dep’t of Corr. Servs., 245 AD2d 870, 872 [1997]).Next, it appears that some of the hours expended by petitioner were excessive for the work actually performed, especially in light of his asserted level of expertise (see Rourke v. New York State Dep’t of Corr. Servs., 245 AD2d 870, 871 [1997]). Although petitioner sought to justify his hourly rate by touting his experience in the field of FOIL requests and Article 78 proceedings, his time sheets included entries indicative of inexperience. By way of illustration, entries on July 6, 2015, reflect bills for 1 hour to “[t]ravel to clerk’s office as per suggestion,” .2 hours for “[c]lerk discussion (says I was doing it wrong),” .3 hours to “[v]isit to Anthony Russo’s office to print the order and combined the copies,” .2 hours to “[g]o back to the Clerk and submit notice of appeal which was still incomplete,” and .9 hours the following day for “[t]raveling back to County for filing” and “[f]iling at Nassau County Clerk.”Respondent further argues that petitioner spent 53.4 hours developing the administrative record which would ultimately be the basis of the Article 78 proceeding, and that petitioner should not be entitled to these fees as developing the administrative record for the proceeding is not the same as the proceeding itself. Petitioner fails to demonstrate that he is entitled to fees for any legal work done prior to the commencement of this proceeding, and the Court cannot find any authority granting fees for such work (see Powhida v. City of Albany, 147 AD2d 236, 238 [1989][awarding petitioner fees and costs for article 78 proceeding only]; The Legal Aid Soc. v. New York County Dist. Atty.’s Office, — Misc 3d-, 2019 NY Slip Op 31106[U][Sup Ct, New York County [2019][attorneys awarded fees incurred in prosecuting the proceeding to the point where the District Attorney agreed to produce all documents in its possession, consisting of a modest amount of legal research, and drafting a notice of petition, petition, affidavits, and reply memorandum]; The New York Civil Liberties Union v. The City of Saratoga Springs, — Misc 3d — , 2010 NY Slip Op 34045[U][Sup Ct, Saratoga County [2010][declining to award attorney's fees where respondents voluntarily produced all documents after petition filed and some brief and informal court intervention]).With respect to the time expended on this fee application, commonly referred to as “fees on fees,” such an award must be based upon statute or agreement and is only authorized where such language is “unmistakably clear” (Batsidis v. Wallack Mgt. Co., Inc., 126 AD3d 551, 552 [2015]; see also Sage Realty Corp. v. Proskauer Rose LLP, 288 AD2d 14 [2001]). Here, petitioner fails to cite to any case or other authority permitting an award of fees on fees in a successful FOIL proceeding (see The Legal Aid Soc. v. New York County Dist. Atty.’s Office, — Misc 3d-, 2019 NY Slip Op 31106[U][Sup Ct, New York County [2019][declining to award fees on fees since FOIL's "fee-shifting provision is not unmistakably clear that such fees are authorized"]). Thus, petitioner has not established his entitlement to fees for the 19.25 hours expended on collecting his fees.Therefore, applying a 50 percent reduction in hours billed decreases petitioner’s billable hours to 87.925, which at a rate of $350 per hour, produces a total award of attorney’s fees in the amount of $30,773.75.The Court has considered the parties’ remaining contentions and deems them unavailing.Accordingly, it is ORDERED and ADJUDGED that, that respondents shall pay petitioner the sum of $30,773.75 as attorney’s fees within 30 days of the notice of entry of this decision and judgment.Dated May 22, 2019
