New York State Court of Claims

New York State Court of Claims

SLATE v. THE STATE OF NEW YORK, #2001-015-537, Claim No. 96573


Attorney's claim for legal services rendered on behalf of State employee dismissed on ground that attorney had already received sufficient compensation. State's counterclaim also dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Jerold S. Slate, EsquirePro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 19, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

This decision relates to the trial of a claim seeking $62,385.00 in legal fees and $2,755.89 in expenses incurred in representing a State employee pursuant to Public Officers Law § 17 and the defendant's counterclaim to recover a portion of monies previously paid to the claimant.

The claim alleges that on August 11, 1995 the Attorney General certified that Correction Officer Kirk Montgomery was entitled to be represented by private counsel in the case of
Brooks v Montgomery, et al, 95 CV 542, then pending in the United States District Court for the Northern District of New York. The Attorney General's determination was made pursuant to section 17 of the Public Officers Law which provides indemnification and the payment of defense costs for State employees where the Attorney General determines that representation of the State employee by his or her office would be inappropriate. The Office of the State Comptroller (OSC or Comptroller) has established a fee schedule for attorneys pursuant to Public Officers Law § 17 and makes the initial determination of the reasonableness of the fees requested. Public Officers Law § 17 (2)(b) provides in pertinent part that "any dispute with respect to . . . the reasonableness of attorneys' fees shall be resolved by the Court on motion or by way of a special proceeding".
Claimant alleges that Kirk Montgomery retained him as counsel on the federal case and that he submitted monthly vouchers to the Comptroller for legal services and expenses incurred from September 1995 through October 1996. The Comptroller approved payment of those vouchers but thereafter refused to pay vouchers submitted for the months of November 1996 through March 1997. The underlying federal lawsuit settled in February 1997 and the settlement was so ordered by U.S. Magistrate Judge Ralph W. Smith on March 31, 1997. On April 23, 1997, the Comptroller sent claimant written notice that no further payments would be made for legal services rendered to Mr. Montgomery. A notice of intention to file a claim was served upon the Attorney General on June 16, 1997 and a claim was filed on July 11, 1997. Claimant seeks $65,140.89 in damages including $62,385.00 in attorney's fees and $2,755.89 in expenses. The record discloses that as of April 1997 the State had paid claimant $211,045.44 for attorney's fees and expenses, a portion of which the State is herein seeking to recoup on the grounds that claimant overbilled for his legal services.

At trial claimant, an attorney admitted to practice in this State, acted as his own trial counsel and testified on his own behalf[1]
. He described his legal education including his graduation from Brooklyn Law School in 1967 and his subsequent receipt of a Masters Degree from Boston University Law School. He then described his work for a corporation and legal publication company followed by work in a New York City law firm from 1970 through 1981. From 1981 through 1984 he was an Assistant Corporation Counsel for the City of Mount Vernon. Thereafter, he was appointed a New York State Assistant Attorney General, State Counsel Division, and served in that capacity from 1984 until he was terminated in 1991. He described in detail his caseload in that office which included representing numerous correction officers and DOCS officials, primarily in the New York State Court of Claims. After leaving the Attorney General's Office in 1991 he returned to the private practice of law where he handled sexual harassment, employment discrimination, personal injury, child custody and other cases in both state and federal courts and administrative proceedings.
Claimant then offered in evidence certain documents (Exhibits 1-7) which included the claimant's retainer agreement with Kirk Montgomery; Montgomery's affidavit selecting claimant as his attorney pursuant to Public Officers Law (POL) § 17; a copy of the counsel fee schedule showing applicable hourly rates to be charged by private counsel pursuant to 2 NYCRR 20.4; a cover letter from the Office of the State Comptroller to claimant dated November 3, 1995; a sample voucher form; a copy of a letter dated August 11, 1995 to Montgomery from Assistant Attorney General Richard Freshour advising Montgomery of his entitlement to representation by private counsel; and claimant's letter dated September 30, 1995 advising the Office of the Comptroller that he had been retained by Kirk Montgomery pursuant to POL § 17. These exhibits were received without objection.

Claimant then proceeded to testify regarding the nature of the Federal District Court case against Kirk Montgomery.

According to the claimant and as reflected in Exhibit 9, the original complaint filed in the District Court asserted a cause of action under 42 USC § 1983 arising from an alleged assault upon the plaintiff Brooks by Correction Officer Montgomery on December 23, 1993 outside the housing unit A-2 mess hall at Shawangunk Correctional Facility. In essence, the complaint alleged that Montgomery assaulted Brooks without provocation or justification and that Correction Officer Wolf both failed to intercede and actively assisted Montgomery by holding the plaintiff's ankles and acting as a lookout while the assault continued. The complaint also asserted a cause of action for supervisory liability against Louis Mann, Superintendent of Shawangunk Correctional Facility, alleging, inter alia, that Montgomery was known by Mann to have engaged in misconduct on prior occasions. Brooks also alleged that Montgomery was a member of a group of correction officers known as "The Vikings" who abused and harassed prisoners, particularly African American, Latino and disabled inmates. The complaint sought declaratory relief, $100,000.00 in compensatory damages, punitive damages and attorney's fees and costs.

In his direct testimony claimant alleged that in 1993 a complaint had been filed with the U.S. Department of Justice, Civil Rights Division, concerning the Vikings which prompted an investigation by the Department of Correctional Services (DOCS) Inspector General who found that the allegations could not be confirmed. Nevertheless, the Inspector General's investigation of racially motivated activity prompted numerous depositions in the
Brooks v Montgomery lawsuit and allegedly required claimant to spend additional time and energy on this case over that usually expended on a more typical inmate assault case.
Claimant also testified that the plaintiff's lawyers, Geri Pomerantz and Joel Landau, employed by Prisoners' Legal Services of New York, were aggressive advocates and that his representation of Montgomery was complicated by the fact that five disciplinary charges had been filed against his client which he alleged would likely affect any punitive damage award in the federal action unless he could show that the acts alleged were performed within the scope of Mr. Montgomery's employment. He alleged that he researched federal law regarding whether Montgomery's disciplinary records were discoverable pursuant to Federal Rules of Civil Procedure 26 (b)(1) in an attempt to exclude the federal court's consideration of those charges against his client.

Claimant then testified regarding a note allegedly written by Montgomery to a newly hired guard at the facility which plaintiff Brooks had described in paragraph 13 of the complaint and which later served as the basis of a disciplinary charge lodged against Montgomery. This note was said to be the subject of an extensive deposition of claimant's client.

He further testified regarding his opposition to a motion to amend the complaint to add defendants Thomas Testo, Director of DOCS Bureau of Labor Relations; Kevin Breen, DOCS Assistant Commissioner for Labor Relations; and Glenn Goord, Deputy Commissioner for Facility Operations in 1993 and later Acting Commissioner of DOCS; and the necessity of preparing an amended answer on his client's behalf. Claimant offered in evidence copies of the amended pleadings including the amended answers served on behalf of the other named defendants and they were received in evidence without objection as Exhibits 10-15.

Claimant recounted both Brooks' and Montgomery's differing accounts of the underlying incident and described the disciplinary proceeding regarding the use of excessive force begun against his client as a result of the alleged incident. He detailed Montgomery's representation at the disciplinary hearing by Council 82, discussed the medical testimony offered by both sides and testified regarding his review of the 900 page transcript of the proceeding.

According to the claimant he was contacted at some point during the litigation by an inmate at another prison who alleged that plaintiff Brooks had injured himself in order to sue the State. He described the arrangements made to depose that inmate and alleges that settlement of
Brooks v Montgomery occurred shortly after the completion of that deposition.
Claimant then offered in evidence photocopies of vouchers including time and expense records for the period beginning September 27, 1995 through October 31, 1995 and for later periods submitted on a monthly[2]
basis thereafter through February 28, 1997. These vouchers were submitted in the month subsequent to the month in which the charges allegedly were incurred which accounts for the reference in the instant claim to fees and expenses incurred through March 1997. The Court's review of Exhibit 16 has failed to uncover any fees or expenses for March 1997. Exhibit 16 was received in evidence without objection. Claimant also offered in evidence as Exhibit 17 two copies of a letter dated August 11, 1995 to Kirk Montgomery from Assistant Attorney General Richard J. Freshour (previously received in evidence as Exhibit 6) along with a copy of a facsimile transmission page from Denise Strom to Paula Hunziker regarding notification to the Comptroller of claimant's legal representation pursuant to POL § 17. Exhibit 17 was received in evidence without objection. Claimant then related discrepancies between the medical records regarding treatment provided inmate Brooks following the incident which were maintained by DOCS and those resulting from a subsequent examination at St. Luke's Hospital. He discussed the number of people (i.e., 15-20) who, according to DOCS records, responded to the alarm activated by defendant Robert Wolf and of the need to depose each individual responder. He also described depositions of medical staff at Shawangunk conducted by plaintiff's and other attorneys and the extensive deposition of the plaintiff and his preparation for such depositions including the review of Brooks' prison records. He also detailed his work effort involving the preparation and conduct of depositions of three or four inmates who alleged that they were eyewitnesses to Montgomery's battery of the plaintiff including a site visitation by claimant in which he discovered that it was physically impossible for all of the alleged eyewitnesses to have viewed the event through a single 5 inch by 8 inch window as they alleged.
During the investigation, claimant discovered that the plaintiff's lawyer, Geri Pomerantz, had agreed to represent these alleged eyewitnesses and this fact necessitated an application by claimant to the District Court for a ruling on whether such representation constituted a conflict of interest. He alleged that his application further exacerbated his already difficult relationship with plaintiff's counsel.

Claimant testified that his representation of Kirk Montgomery was successful in that there were no negative findings made against his client and no damages were assessed against Montgomery individually. He proceeded to testify regarding his deposition of a correction officer who instructed other correction officers regarding the proper use of force and he stated that the deposition required his review of various DOCS material including the use of force manual. Claimant testified that it was necessary for him to review transcripts of testimony offered by the 22 witnesses who testified at the proceeding brought against Montgomery and to make notes with regard to their testimony. He alleged that he reviewed thousands of pages of documents and thousands of pages of transcripts and that the work he performed was accurate, fair and reasonable.

Claimant then offered what amounts to legal argument rather than factual testimony regarding what he perceived as essential differences between his client and co-defendant Robert Wolf, including their alleged degree of participation in the underlying incident, the existence of disciplinary charges against Montgomery and his alleged membership in the Vikings gang. He argued that the allegations of racism and the specter of punitive damages raised this case above the ordinary case involving an assault upon an inmate.

He testified that his representation of Montgomery was further complicated by the fact that his client had been stabbed by an inmate while on the job and suffered medical and emotional injuries as a result. He alleged that plaintiff Brooks' lawyers applied to obtain disclosure of Montgomery's medical and psychological records and that he endeavored to prevent their disclosure as exempt personnel records pursuant to New York State Civil Rights Law § 50-a. He alleged that he spent considerable time researching the disclosure of such records pursuant to the Federal Rules of Civil Procedure as then recently amended in 1993.

Claimant testified that his work as an attorney for Kirk Montgomery in
Brooks v Montgomery continued during the months of November and December 1996 and into January, February and March 1997 and that he incurred necessary expenses for which he was not paid. He alleged that the time records submitted as part of Exhibit 16 provided a detailed explanation of the work performed recorded in tenths of an hour. Claimant then attempted to summarize the work he performed in each of the months at issue herein. Most of the testimony in this regard was a recapitulation of earlier testimony. An exception being claimant's explanation that David Resnick, an attorney, began assisting claimant on the case in January 1997. With regard to March 1997 fees and expenses claimant testified only that time records submitted include a voucher for reimbursement of expenses incurred. Claimant testified that all time records submitted were true and accurate and alleged that the work he performed was reasonable and honest.
Claimant offered in evidence Exhibits 20-31 which were received without objection. These exhibits consisted of twelve boxes of materials only some of which were categorized by claimant in a document marked as Exhibit 41 but not received in evidence. Claimant also offered selected portions of testimony from the deposition of Harvey Silverstein held on May 6, 2000 which the Court received in evidence without objection as Exhibit 42.

On cross-examination claimant was questioned regarding his admission to the bar and his prior representation of State employees, including correction officers. He was questioned also regarding the initial representation of Kirk Montgomery by the law firm of Hite and Casey. He was also questioned regarding his 7 year employment with the New York State Attorney General's Office and his termination from that position which he described as a difficult experience. The State then offered Exhibit C, copies of documents related to the disclosure of Montgomery's medical and psychological records in the federal lawsuit. Defendant's attorney asked the Court to take judicial notice of a decision rendered in the U.S. District Court for the Northern District of New York entitled
Funk v F & K Supply, Inc., (43 F Supp 2d 205) in which the claimant represented the plaintiff and in which he requested counsel fees. The State offered in evidence Exhibit I which was an order issued by Magistrate Judge Smith in the underlying federal action dated December 12, 1996. No objection was made to its receipt in evidence.
Claimant then recalled himself as a witness and testified on re-direct examination that his client had never told him that any other law firm had acted on his behalf in the federal lawsuit. After his retainer agreement was executed claimant discovered that the law firm of Hite and Casey had prepared an answer to the complaint without being retained by Montgomery. Hite and Casey subsequently withdrew from representing Montgomery. Claimant also testified that his termination from the Attorney General's Office was due to budgetary factors.

The defendant called Patrick Burke as its first witness. Burke testified that he graduated from law school in 1966 and worked for the Department of Justice Organized Crime Task Force until he entered private practice and that most of his practice involved litigation in the federal courts. The witness represented co-defendant Robert Wolf in
Brooks v Montgomery and described the activities in which he engaged in furtherance of that representation including visiting the scene, taking photographs, attending depositions, conversing with other attorneys and reviewing documents. Burke testified that he periodically submitted bills to the Comptroller for payment and that copies of such bills were contained in Exhibit E. That Exhibit was offered and received in evidence without objection. Without being qualified as an expert the witness opined that the 425 hours spent by him in his representing Wolf were reasonable.
On cross-examination Attorney Burke admitted that the allegations raised in the federal lawsuit against his client (Wolf) were less onerous than those alleged against Mr. Montgomery who the witness admitted was the primary focus of the case. He further admitted that no allegations regarding membership in the Vikings were made against Wolf. The witness recalled the depositions related to the alleged gang activities; the Inspector General's investigation; the deposition of Superintendent Louis Mann; and the deposition of the inmates who allegedly witnessed the assault upon Brooks. The witness acknowledged in response to questioning that the claimant did a good job representing Montgomery.

Burke briefly discussed his prior involvement in federal civil rights cases and stated that although he generally represented plaintiffs in such cases he had also successfully defended correction officers in both state and federal court. The witness stated that in his opinion
Brooks v Montgomery was not a difficult or complex matter. Burke testified that he reviewed all documents received in the underlying lawsuit and acknowledged that he was assisted by an attorney in his firm and by a paralegal who digested deposition transcripts and created narratives for his use.
The defendant next called Assistant Attorney General Richard Freshour. Freshour testified that he graduated from Albany Law School in 1976 and became employed by the New York State Attorney General's Office beginning in 1977. He discussed his work in federal and state courts and testified that most of his federal work involved civil rights cases commenced pursuant to 42 USC § 1983. He estimated that he had handled more than 500 cases in his career.

The witness then testified regarding his involvement in
Brooks v Montgomery in which he represented all of the remaining named defendants. He described his preparation of pleadings and letter memoranda and stated that he made no motions on his clients' behalf. He testified that he participated in discovery, both demanding and obtaining documents and appeared at depositions of clients, other parties and non-party witnesses. The witness acknowledged that as an Assistant Attorney General he did not maintain hourly billing information but estimated that he spent between 600 and 1000 hours on behalf of his clients in the Brooks v Montgomery case.
On cross-examination Freshour was asked how he calculated the hours spent on the underlying case. He alleged that he reviewed his file and estimated how much time it took to perform specific tasks including the preparation of pleadings, conducting interviews of witnesses, traveling, attending depositions, reviewing documents and research. He admitted that the process was imprecise. The witness acknowledged that his only attempt at keeping time records occurred during the tenure of Attorney General Dennis Vacco when staff attorneys were required to record time spent on a "client agency" basis but not on an individual case basis.

Freshour testified regarding the determination to provide outside counsel to Kirk Montgomery pursuant to POL § 17 in the underlying action. He admitted that he was assisted by DOCS personnel in securing documents without requiring the usual discovery notices required from other attorneys, including the claimant, but denied any other form of assistance from DOCS employees in the federal case. The witness acknowledged that in creating his estimate of time spent he did not review his entire file
and did not read any of the deposition transcripts prepared in that case. He, in fact, admitted that his estimate of time spent was performed in April of 1997 shortly after the instant claim was filed and could not recall if he made any notes in estimating the time spent on Brooks v Montgomery. Freshour alleged that the underlying case was no more difficult to settle than any other 42 USC § 1983 litigation in which he had been involved. There was no redirect examination of this witness.
The State called Geri Pomerantz as the next witness. Ms. Pomerantz testified that she graduated from law school in 1987 after which she went to work for Prisoners' Legal Services (PLS) and that she is now employed by Legal Services of the Hudson Valley. While at PLS she handled article 78 proceedings, prison disciplinary and medical care cases in both state and federal courts. She alleged that at some point in 1994 she became involved in what later became the case of
Brooks v Montgomery and was the principal attorney in that case through its settlement in February 1997. The witness testified that she expended approximately 800 hours of legal time on the underlying case which settled for $100,000.00 in legal fees and expenses and $20,000.00 in damages payable to the plaintiff Lorenzo Brooks.
On cross-examination Ms. Pomerantz stated that she was sure she kept time records on the case but was unable to locate them. She alleged that she had recently seen a portion of those records but could not recall whether the records related to 1996 or 1997. She alleged that during settlement negotiations she prepared a summary of the hours spent on
Brooks v Montgomery and that her present recollection is that the total was approximately 800 hours. She acknowledged that in the underlying action the fees paid for PLS's representation of plaintiff Brooks were paid as part of the settlement and were not requested pursuant to 42 USC § 1988. The witness could not recall if she had ever received a "Rule 68"[3] offer in the case but did recall attempting to settle the case many times beginning in the early stages of litigation.
Pomerantz testified regarding a subsequent amendment of the complaint to add various other DOCS officials alleging supervisory liability on the part of the State due, in part, to the alleged Viking gang activity. She opined, without expert qualification, that evidence regarding gang activity would not likely have been admissible against Kirk Montgomery.

She alleged that although other PLS attorneys worked on the underlying case at various times the hours attributable to their efforts were included in the 800 hours which she estimated were spent on the case. Pomerantz testified that she was a salaried employee at PLS who was paid regardless of whether the case generated a fee. She recalled that during the first three months of 1997 there were budget cuts at PLS but thought that she worked full time during those months. Pressed on the issue the witness admitted that she did not recall the amount of time she actually worked during January, February and March 1997.

She offered additional testimony regarding her activities and discussed differences between the allegations her client made against co-defendant Wolf vis–a-vis defendant Montgomery. She recalled reams of papers being produced by the claimant but described the voluminousness of DOCS files related to the case as average except those relating to Montgomery and to the grievance arbitration which she described as large. She recalled depositions of the alleged inmate eyewitnesses but did not recall deposing George Siefert[4]
as part of the underlying action.
On redirect examination the witness testified that she approached the state regarding settlement of
Brooks v Montgomery arguing among other things that money ultimately payable for counsel fees, including claimant's fees, could be saved by such a settlement citing to a previous case in which the claimant had been involved and in which the instant claimant requested fees totaling $255,568.50 and was awarded $184,449.50 by the Court.[5]
The next witness called by the defendant in this trial was Brian J. O'Donnell a member of the law firm of Rowley, Forrest, O'Donnell & Beaumont, P.C. O'Donnell testified that he is a 1975 graduate of Albany Law School and was admitted to practice law in both the federal and state courts in 1976. He alleged that his practice has been devoted primarily to labor and employment law and often involved his representation of correction officers, sergeants and lieutenants including their defense in federal court. He testified that he has represented correction officers pursuant to POL § 17 on twelve occasions. He acknowledged that he was being paid for his testimony at trial.

The witness indicated that he reviewed 10 boxes of claimant's files on the underlying case which he found to be in no particular order. O'Donnell then offered testimony seeking to establish the amount of time which the witness alleged to be appropriate for the various activities listed. These included the following:

Hours Activity
  1. Interview client, potential defense witnesses, DOCS records, Montgomery psychiatric records, etc.
  2. Identify consistencies/inconsistencies
  3. Prepare answer to complaint
  4. Oppose motion to amend complaint
  5. Review denial of motion and draft answer to amended complaint
  6. Rule 16 conference - scheduling order
  7. Respond to plaintiff's interrogatories
Plaintiff Brooks
  1. Preparation
  2. Depose
  3. Review/analyze transcript
Four Alleged Inmate Witnesses
  1. Preparation
  2. Per inmate to depose
  3. Per inmate to review/analyze transcript.
Correction Officers' Depositions
(5 Correction Officers responding to red dot alarm)
  1. Preparation
  2. Per officer to depose
  3. Per officer to review/analyze transcript
Correction Officer Montgomery
  1. Preparation
  2. Deposition
  3. Review/analyze transcript
Correction Officer Wolf
  1. Preparation
  2. Deposition
  3. Review/analyze transcript
Superintendent Mann
  1. Preparation
  2. Deposition
  3. Review/analyze transcript
Tom Testo (DOCS Bureau Labor Relations)
  1. Preparation
  2. Deposition
  3. Review/analyze transcript
  1. Preparation
  2. Deposition
  3. Review/analyze transcript
Nurse Vacca
  1. Preparation
  2. Deposition
  3. Review/analyze transcript
Inmate alleging Brooks' claim was false
  1. Secure affidavit and deposition
  2. Preparation
  3. Deposition
  4. Review/analyze transcript.
  1. Settlement negotiations
  2. Multiple defendants, multiple counsels- coordinate among counsel

O'Donnell then offered an opinion that a range of 400-540 hours was adequate to defend Montgomery in the underlying case through settlement. The witness compared that range to hours spent in excessive force cases which he had handled and for which his time records were available. He testified that in all those cases, except one, billable hours were less than 400 hours in total and that in the other case billable hours were approximately 400 hours.

Cross-examination of the witness revealed that he had never before compared or analyzed attorney billing records as an expert witness although he alleged that he regularly evaluated the reasonableness of an attorney's billing as part of his practice. O'Donnell admitted that he had not written any scholarly articles nor lectured on the subject of reasonable attorney fees. He admitted that he was being compensated at the rate of $150.00 per hour for his work on defendant's behalf and that he had billed the State $5,500 as of the week prior to trial and anticipated his total bill to be approximately $6,500 to $7,000. The witness testified that he reviewed the disciplinary proceedings brought against Kirk Montgomery as a result of the incident described in the underlying lawsuit but could not recall reviewing the five prior notices of discipline lodged against him. The witness opined that it was unnecessary for claimant to have deposed the individuals involved in those five notices of discipline. O'Donnell agreed with claimant, however, that he would have investigated the allegation of Montgomery's membership in the Vikings because the allegations were part of the underlying complaint even though such allegations would probably not have been admissible against Montgomery at trial.

O'Donnell admitted that in forming his estimates of reasonable time spent he did not read every paper in claimant's file, he did not read the deposition transcripts but did read incident reports, the use of force manual, Montgomery's personnel file, the Inspector General's report, the pleadings, etc. On the subject of the admissibility of Kirk Montgomery's psychological/medical records the witness indicated that a document in the file from a doctor recommending that Montgomery be kept out of inmate contact for two weeks following the incident in which Montgomery had been stabbed had already been disclosed as part of Montgomery's personnel file in the federal action and that claimant's efforts to prevent the disclosure of already revealed material made no sense and such efforts should not be compensated.

The witness could not recall having submitted an application seeking a determination of attorney's fees in a federal civil rights case nor had he defended against such an application. He professed familiarity with the criteria to be used in determining the appropriate amount of attorney's fees in such cases. He testified that of the twelve federal civil rights cases he handled all involved 8
th amendment cruel and unusual punishment claims against correction officers, all involved multiple defendants and that of the twelve cases two went to trial. In the first trial the witness represented more than one defendant and the verdict was rendered against only one of the defendants. The second trial resulted in a verdict for the defense. O'Donnell admitted that in preparing for this trial he reviewed only 35% of claimant's file and did not review the Assistant Attorney General's file or the files of any of the other attorneys involved in the underlying action. The witness' cross-examination ended with an admission that it was reasonable for claimant to have hired a doctor to investigate the extent of plaintiff Brooks' injuries. There was no re-direct examination of the witness.
The State's final witness was Harvey Silverstein, an associate attorney in the Office of the State Comptroller, who testified regarding his employment history with that office and described his employment duties including those relevant to the time of the instant claim's accrual. Those duties included, among others, the auditing of vouchers of private attorneys seeking payment for representation of present or former State officers or employees pursuant to Public Officers Law § 17. He described the auditing procedures as fairly simplistic beginning with the Attorney General's determination of the need for outside counsel followed by OSC providing a copy of the regulations and rate schedules to the designated attorney. Thereafter, as work was performed, the attorney submitted periodic vouchers with attached bills and detailed explanations of time spent. The information submitted was checked for mathematical accuracy making sure that the correct hourly rate was used and that receipts for all claimed expenses were attached. Silverstein stated that such submissions were and are subject to a good faith presumption that the hours for which compensation is requested were both reasonable and necessary. He alleged that all Public Officers Law § 17 issues are handled by one auditor and one attorney at OSC.

The witness testified that the first two vouchers submitted by the claimant in relation to
Brooks v Montgomery were subjected to a line by line audit and some of the claimant's charges were disallowed (see, Exhibit 16, Silverstein letter of January 16, 1996 attached to voucher for legal services 9/27/95-10/31/95; and Silverstein letter of February 15, 1996 attached to voucher for legal services/expenses 11/1/95-11/30/95).
Silverstein testified that following the audit and payment of the reduced amount on these two vouchers claimant continued to bill the State for legal services and expenses and that such vouchers were audited on a less detailed basis and paid until he received notification of United State's Magistrate Judge Smith's order in
Brooks v Montgomery (Exhibit I). He stated that given the strong language of the order he thereupon conducted an audit of all payments made to claimant and determined that the State had paid claimant approximately $211,000.00, an amount the witness believed to be excessive. After a conversation with Assistant Attorney General Richard Freshour the witness determined that claimant would not be paid for his last four vouchers and informed the claimant of that decision by letter dated April 23, 1997 (Exhibit A).
The witness explained that the determination regarding the excessiveness of claimant's billing was based upon a number of factors including Magistrate Judge Smith's order; conversations with Assistant Attorney General Freshour regarding time spent on the same case; review of OSC records from Burke, McGlinn and Miele for the defense of co-defendant Wolf; an estimate of time spent by Prisoners' Legal Services in the prosecution of the case provided by Freshour; a review of thirteen other federal cases involving alleged use of force by correction officers; and common sense billing judgment. With regard to the other federal cases in which payments were made the witness testified that the average legal time billed was 322 hours with an average per case cost of $47,000.00. He stated that the highest of the thirteen cases was $207,000.00. In this case, claimant billed for approximately 1900 hours as compared to Patrick Burke's submission of 425 hours and the Freshour estimates of 600 hours for himself and 800 hours for PLS.

On cross-examination Silverstein stated that he did not know if any of the other excessive force cases to which he referred in the April 23, 1997 letter to claimant involved more than 10 eyewitnesses. He also did not know if either the Comptroller or the Attorney General had performed a comparative analysis of those other excessive force cases comparing them to
Brooks v Montgomery. Silverstein could not recall how many of the thirteen cases involved more than one defendant; if any of them involved an investigation by the DOCS Inspector General; or if any of the named defendants in those cases had been charged with prior use of excessive force. The witness further admitted that he did not know if any of those thirteen cases involved disclosure disputes related to medical/psychological records of the named defendant(s). The witness further admitted that he did not verify Freshour's estimate of time spent by PLS on the underlying case and did not know how Freshour had computed the estimate of his own time spent on Brooks v Montgomery.
Silverstein acknowledged that he and the claimant spoke numerous times during the course of claimant's representation of Kirk Montgomery and that claimant offered to supply OSC with any records required to justify payment of the amounts requested by him. He testified that OSC ultimately refused any further payments to claimant. The witness' cross-examination concluded with his testimony that he estimated claimant had billed approximately 8 hours for the work criticized by Magistrate Judge Smith in his order (Exhibit I) and that he thereafter undertook a complete audit of all payments made to claimant in the underlying action. The State requested that the Court take judicial notice of Exhibit H and Exhibit G (Trial Diplomacy Journal) and thereafter rested.

Claimant then recalled himself to testify regarding the State's counterclaim. His testimony in this regard is largely legal argument seeking to point out what claimant viewed as essential differences between his client and the co-defendants and how such differences required more work of a complex nature on his part than was required of the other attorneys involved in
Brooks v Montgomery.
He further argued that the Freshour time estimates, both his own and those of PLS, were unreliable and pointed out the relative inactivity of Assistant Attorney General Freshour at depositions. He argued that Freshour's testimony regarding his time spent on the case and the time he estimated was spent by PLS was both speculative and conclusory.

With regard to Geri Pomerantz, claimant argued that she produced no time records and that without them there was no reliable way for her to determine hours spent by PLS on the underlying case. He alleged that the time records of PLS were the "best evidence" of such proof and that such records were not produced and offered in evidence.

Claimant criticized the testimony of Brian O'Donnell for his failure to review any deposition transcripts in the underlying case, his failure to compare correction officer cases he had handled with
Brooks v Montgomery, his failure to review 65% of the claimant's file and any of the files of the other attorneys in the underlying case before estimating an appropriate amount of time to be spent on the case. Claimant argued that O'Donnell's testimony was speculative and unreliable, especially as it related to the reasonable amount of hours required to depose the inmate eyewitnesses. He also took issue with O'Donnell's suggestion that claimant could have waited until the trial in the federal action to move for the exclusion of Montgomery's medical and psychological records.
Claimant then testified regarding the positive result achieved for Kirk Montgomery and stated that the rate for outside counsel fees was set by the State of New York and that he worked on the underlying case without payment for five months.

At the conclusion of the claimant's testimony on the counterclaim the State made a motion to conform the pleadings to the proof to increase the ad damnum clause of defendant's answer to $120,000.00. The Court, after argument, granted this motion. The State further moved to dismiss the claim for claimant's failure to state a prima facie case, and for judgment on the State's counterclaim. The Court reserved decision on the former and denied the latter motion. Claimant moved for a directed verdict on the claim and counterclaim. Claimant's motion was denied.

Public Officers Law § 17 (2)(b), in relevant part, provides:
Reasonable attorneys' fees and litigation expenses shall be paid by the state to such private counsel from time to time during the pendency of the civil action or proceeding subject to certification that the employee is entitled to representation under the terms and conditions of this section by the head of the department, commission, division, office or agency in which such employee is employed and upon the audit and warrant of the comptroller. Any dispute with respect to representation of multiple employees by a single counsel or the amount of litigation expenses or the reasonableness of attorneys' fees shall be resolved by the court upon motion or by way of a special proceeding.
Clearly in this case a dispute exists as to the reasonableness of the attorney's fees requested pursuant to POL § 17. The Appellate Division, Third Department, in deciding the most recent appeal involving this claim stated, "We note that the State's obligation to pay counsel fees and litigation expenses under the Public Officers Law § 17 is limited to those costs which are "reasonable" (Public Officers Law § 17 (2) (b)). Fees and expenses which are unreasonable are 'clearly prohibited by law' (
People v Sutherland, supra at 27). Therefore, if the State can prove that the Comptroller's audits and payments of claimant's vouchers contained payments for unreasonable legal fees and expenses, their 'validity may be controverted notwithstanding the audit[s]' (id at 28)" (Slate v State of New York, ____ AD2d ____, 2001 WL 695141 (NYAD 3 Dept.)).
The burden of proof with regard to the necessity and reasonable value of the legal services rendered in this case rests upon the claimant (
see, Centre Great Neck Co. v Penn Encore, 255 AD2d 543). "No hard and fast rule exists by which it can be determined what is reasonable compensation for an attorney in any given case" (Stellis, Matter of, 216 AD2d 473, 474). The actual time spent by an attorney in litigating a matter is not determinative. Rather the Court must consider "the time, effort and skill required; the difficulty of the questions presented; the responsibility involved; counsel's experience, ability and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation" (Hinman v Jay's Vil. Chevrolet, 239 AD2d 748, 749; citing Shrauger v Shrauger, 146 AD2d 955, 956) in determining the reasonable value of legal services performed.
Proof in this regard may be offered in the form of expert testimony (
see, Ogletree, Deakins, Nash, Smoak & Stewart v Albany Steel, 243 AD2d 877; Larkin v Present Co., 152 AD2d 1005), but such testimony "while entitled to weight, [is] not conclusive on the court which [is] entitled to 'form an independent judgment from the facts and evidence before it' (McAvoy & Harron, 26 AD2d 452, 454)" (Ogletree, supra at 879).
In this particular case claimant offered no evidence other than his own testimony that the work performed was reasonable and necessary . He offered no expert testimony in this regard and failed to qualify himself as an expert in the field of attorney compensation prior to offering his opinion.

In applying the appropriate factors to the proof presented at trial, the court finds that the claimant has failed to establish an entitlement to compensation in addition to that already paid, other than for expenses incurred. Although the
Brooks v Montgomery litigation involved facts which were nominally unique, including defendant Montgomery's prior disciplinary history and allegations concerning his involvement in the group known as "the Vikings," they are not so clearly singular as to take this case outside the norm for litigation of a similar nature. While claimant testified as to his experience in general terms he failed to establish his particular expertise in the defense of federal civil rights cases and provided no insight as to his abilities in general or his reputation in particular. Compensation was set at the level established by the Comptroller and was not contingent in nature.
While this Court has no doubt as to the claimant's sincerity and no question is here raised that the hours billed were not actually performed, a review of the proof presented, including claimant's files which are voluminous, reveals that the claimant's efforts on behalf of his client, while vigorous, appear in some instances to have been excessive and, therefore, unreasonable[6]
. In this regard the Court is mindful of Magistrate Judge Smith's admonition in his Order of December 12, 1996 (Exhibit I) that ". . . Mr. Slate's November 13 request for reconsideration, which raises no new basis for reconsideration, is clearly redundant and thus is a waste of the court's time. The court trusts that Mr. Slate will not bill the state for this wasted, unnecessary effort."
Claimant has failed to establish his entitlement to recover on the claim and it is dismissed in all respects except as to the recovery of legal expenses in the amount of $2,755.89. No proof was offered and no allegation made that such expenses were unreasonably incurred.

With regard to the State's counterclaim, claimant argued on a recent summary judgment motion that the State was precluded from seeking recoupment of the amounts previously paid to him after audit by the doctrine of conclusiveness of an audit citing
People v Sutherland, 207 NY 22, and that the State was estopped from examining the reasonableness of claimant's total bill. The Appellate Division, however, rejected both arguments. That Court concluded that notwithstanding the audits which resulted in payments to the claimant the State, upon trial, could controvert the validity of payments made and recoup such payments by way of a counterclaim upon proof that such payments were made "for unreasonable legal fees and expenses" (Slate v State of New York, supra).
The testimonial and documentary evidence offered by the State at trial fails to establish that the payments made by the State on vouchers submitted from the start of claimant's representation of Kirk Montgomery through October 1996 were, in fact, for fees and expenses which were unreasonable, except for those previously disallowed on the audits of claimant's first two vouchers. The primary element of proof in this regard was the testimony of the State's expert witness Brian O'Donnell summarized above. Despite Mr. O'Donnell's twenty-five years of legal experience including cases in which he represented correction officers named in federal civil rights litigation he, like the claimant himself, was not qualified as an expert witness on the issue of attorney compensation. In fact, his chief qualification appears to be his past representation of clients pursuant to POL § 17 and the preparation and submission of vouchers for work which he performed on those cases. He failed, however, to offer any detailed analysis of those cases vis-a-vis
Brooks v Montgomery and without such an analysis his opinion that claimant could have adequately defended Kirk Montgomery by expending 400-540 hours of legal time must be viewed as less than persuasive. So too, his time estimates concerning the preparation, conduct and review of depositions, client interviews, pleading preparation and review, coordination of defense efforts and settlement negotiations described above are speculative and lacking in objective support.
The testimony of Ms. Pomerantz and Assistant Attorney General Freshour was of limited value and insufficient to meet the burden of proof required to sustain recovery on the defendant's counterclaim. Ms. Pomerantz testified that although she kept records of hours spent in relation to the underlying federal action she was unable to locate those records. Her testimony was anecdotal and lacked any reasonable level of detail. Finally, Ms. Pomerantz was less than clear in her recollection of a total of 800 hours devoted to
Brooks v Montgomery.
Richard Freshour did not maintain time records relative to his efforts and his testimony regarding the estimate he reconstructed was admittedly undocumented, incomplete and imprecise.

The defendant has failed to submit proof sufficient to sustain recovery and the counterclaim is, therefore, dismissed.

Claimant is awarded $2,755.89 plus interest at the legal rate from April 23, 1997.

Let judgment be entered accordingly.

July 19, 2001
Saratoga Springs, New York

Judge of the Court of Claims

[1]Neither party to this claim procured a trial transcript, therefore, the representation of trial testimony is drawn from the Court's notes taken during trial.
[2]Except for a double submission covering the periods 8/1/96-8/31/96 and 9/1/96-9/30/96.
[3]Federal Rules of Civil Procedure, Rule 68 provides: "At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or the effect specified in the defending party's offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof, and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability."
[4]Not otherwise identified or mentioned in the testimony of other witnesses for either party to this claim.
[5]See, Funk v F & K Supply, Inc., supra, 43 F Supp 2d 205, 229, 232.
[6]The Court notes, by way of illustration, that while the defendant's post-trial memorandum totaled sixteen pages, the claimant's memorandum encompassed one hundred fifty-six typewritten pages.