161 Ludlow Food, LLC v. L.E.S. Dwellers, Inc.

161 Ludlow Food, LLC v L.E.S. Dwellers, Inc. 2025 NY Slip Op 31895(U) May 29, 2025 Supreme Court, New York County Docket Number: Index No. 153500/2016 Judge: Lynn R. Kotler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 05/30/2025 01:00 PM INDEX NO. 153500/2016 NYSCEF DOC. NO. 495 RECEIVED NYSCEF: 05/30/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYNN R. KOTLER PART 08 Justice --------------------X INDEX NO. 153500/2016 161 LUDLOW FOOD, LLC, MOTION DATE 08/15/2024 Plaintiff, MOTION SEQ. NO. 010 -v- L.E.S. DWELLERS, INC.,DIEM BOYD DECISION + ORDER ON MOTION Defendant. --------------------X The following e-filed documents, listed by NYSCEF document number (Motion 010) 456,457,458,459, 460,461,462,463,464,465,466,467,468,469,470,471,472,473,474,475,476,477,478,479,480, 481,482,483,485,486,487,488,489,490,491,492,493 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT

In a decision dated September 1, 2022, Defendants/Counterclaim Plaintiffs L.E.S.

DWELLERS, INC. and DIEM BOYD (collectively, "Dwellers") were granted summary judgment on

liability against Plaintiff/Counterclaim Defendant 161 LUDLOW FOOD, LLC ("Ludlow"), and

referred the matter to the Special Referee Part seeking a reference to hear and report on attorneys fees

due to Dwellers. Meanwhile, on November 28, 2023, the Appellate Division, First Department,

modified this court's 9/1/22 decision/order, finding that this Court exercised its discretion in

awarding attorney's fees to defendants, but that defendants did not meet their burden under the

applicable statute and· should not have been awarded summary judgment on punitive damages.

The matter was assigned to Special Referee Jeremy R. Feinberg, who conducted in-person

hearings on April 19 and 20, 2023, May 22 and 23, 2023 and June 26, 2023. Copies of the transcripts

and exhibits have been filed with the court. In a report dated June 28, 2024, Special Referee Feinberg

recommended this court confirm the report with respect to its findings and a money judgment for

$340,430.00 in fees and $6,194.85 in disbursements in favor of Dwellers (the "Report").

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FILED: NEW YORK COUNTY CLERK 05/30/2025 01:00 PM INDEX NO. 153500/2016 NYSCEF DOC. NO. 495 RECEIVED NYSCEF: 05/30/2025

Now, Ludlow moves to reject the Report to the extent that they argue the fees recommended

for Kagen, Casperson & Bogart, PLLC ("KCB") constitute impermissible fees on fees and that the

fees recommended for KCB and Renee Paradis ("Paradis") are excessive, and otherwise moves to

confirm the report. Dwellers opposes the motion and cross-move to reject the Report to the extent

that they are entitled to fees on fees and otherwise move to confirm the report.

A referee's role is to determine the issues referred and resolve conflicting testimony and

matters of credibility (Kardanis v. Velis, 90 AD2d 727, 727 [1st Dept 1982]; Herman v Gill, 61

AD3d 433 [1st Dept 2009]). The court should not disturb a referee's findings where the record

substantiates them. (Izhaky v Izhaky, 189 AD3d 617, 618 [1st Dept 2020]) "It is well settled that the

report of a Special Referee shall be confirmed whenever the findings contained therein are supported

by the record and the Special Referee has clearly defined the issues and resolved matters of

credibility" (Busche v Grover, 180 AD3d 559,559 [1st Dept 2020] quoting Nager v Panadis, 238

AD2d 135, 135-36 [1st Dept 1997]). The court may also reject such findings that are not supported

by the record. (King v King, 183 AD2d 479, 479 [1st Dept 1992]).

Ludlow argues that Dwellers is not entitled to any fees for work completed by KCB as they

constitute "fees on fees" which are not permitted under the pre-amendment version of the SLAPP

statute operative in the case. Dwellers argues that even under the pre-amendment SLAPP statute,

they are entitled to fees on fees and that Special Referee Feinberg was wrong in failing to award

them such fees. Fees on fees constitute any fees for time "spent proving the value of their services"

(Kumble v Windsor Plaza Co., 161 AD2d 259,260 [1st Dept 1990]).

In his Report, Special Referee Feinberg recommended that fees on fees were not allowed

under the operative statute. However, Ludlow argues that all of the hours worked by KCB constitute

fees on fees because they did not represent Dwellers in the underlying action. In the Report, Special

Referee Feinberg classified any work done by KCB "in preparation for, participation at, and (as in

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this case) briefing about, the hearing" as fees on fees but that the other work performed by KCB "is

not fees on fees, and regardless of whether fees on fees are recoverable under the anti-SLAPP

statute". Special Referee Feinberg found that the work performed by KCB in order to win Dwellers'

counterclaim for fees did not constitute fees on fees and should be recoverable. Here, the Court finds

that Special Referee Feinberg's recommendation that fees on fees were not permissible under the

pre-amendment anti-SLAPP statute, but that the hours worked by KCB in order to succeed on the

counterclaim would not constitute fees on fees was supported by the record.

Ludlow also argues that the hourly rates recommended by the report are excessive and should

be reduced. Special Referee Feinberg employed the "lodestar" method to determine reasonable fees,

weighing the hours reasonably expended on the litigation multiplied by a reasonable hourly rate.

Ludlow does not dispute the use of the lodestar method but argues that Special Referee Feinberg

erred by setting hourly rates for different attorneys above their self-estimated rates, and that the

hourly rates recommended by the report are not supported by the record.

Special Referee Feinberg cited case law supporting his decision to award rates higher than

those argued in the memorandum of law, using fees charged by lawyers with like experience and of

comparable reputation to those in the present litigation (see Matter ofGamache v Steinhaus, 7 AD3d

525, 526-527 [2d Dept 2004]; Pettinari v JMA Prop. Services, LLC, 83 Misc 3d 682, 687 [Sup Ct,

NY County 2024]). Special Referee Feinberg also referenced the impressive academic backgrounds

and work experience of Paradis and the attorneys from KCB when awarding higher rates than those

asked for by Dwellers in their brief. The Report also finds that "[t]hese rates are in line with those

that [Special Referee Feinberg] recently recommended, and which a Justice of this Court

subsequently confirmed, in a different anti-SLAPP lawsuit".

Accordingly, it is hereby

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FILED: NEW YORK COUNTY CLERK 05/30/2025 01:00 PM INDEX NO. 153500/2016 NYSCEF DOC. NO. 495 RECEIVED NYSCEF: 05/30/2025

ORDERED that Plaintiff/Counterclaim Defendant 161 LUDLOW FOOD, LLC's motion is

denied to the extent that it asks the Court to reject portions of the Report and granted to the extent

that it asks the Court to confirm the Report; and it is further

ORDERED that Defendants/Counterclaim Plaintiffs L.E.S. Dwellers, Inc. and Diem Boyd's

counterclaim is denied to the extent that it asks the Court to reject portions of the Report and granted

to the extent that· it asks the Court to confirm the Report; and it is further; and it is further

ORDERED that Special Referee Feinberg's report dated June 28, 2024, is confirmed in all

respects; and it is further

ORDERED that the Clerk is directed to enter a money judgment in favor of

Defendants/Counterclaim Plaintiffs and against Plaintiff/Counterclaim Defendant for $346,624.85.

Any requested relief not expressly addressed herein has nonetheless been considered and is

hereby denied and this constitutes the decision and order of the court.

5/29/2025 DATE CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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