UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

U f e A l l O ^ fl <-C__ J w

JOHN S. and JOHN R. by their next friend, BONNIE H. SHOULTZ; and PATRICIA R., by her sister, MARY ALICE B.,
Individually, and on behalf of all other similarly situated individuals,
Plaintiffs,
-against-
MARIO CUOMO, as Governor ofthe State of New York; RICHARD C. SURLES, as Commissioner ofNew York State Office of Mental Health; Ms. Elin Howe,as Commissioner of the New York State Office ofMental Retardation & Developmental Disabilities; RICHARD M. HEATH, asDirector ofthe Mohawk Valley Psychiatric Center; DWIGHT RHODES, asDirector of the Binghamton Psychiatric Center, and JOHN R. SCOTT, as Director of Hutchings Psychiatric Center,
Defendants.

90 -CV- 2 94
No.
COMPLAINT CLASS ACTION

U. S. DISTRICT COURT N.D.OFN.Y. FILED
MAR 1 i 1990

AT

OCLOCK M.

J.R. SCULLY. Cletfc

SYRACUSE

PRELIMINARY STATEMENT 1. Plaintiffs bring this class action to challenge defendants' failure to provide plaintiffs with appropriate care and treatment. Plaintiffs also challenge defendants' failure to have plaintiffs evaluated and assessed by professionals knowledgeable in the field of developmental disabilities.

-1John S. v. Cuomo MR-NY-002-001

2. The plaintiffs are adult residents of Mohawk Valley, Binghamton, and Hutchings Psychiatric Centers who have a diagnosis or history of mental retardation.
3. Mohawk Valley, Binghamton and Hutchings, as psychiatric centers, are not currently staffed or otherwise prepared to provide services, programs or training to persons with mental retardation.
4. Once plaintiffs were admitted to state custody, the defendants obligated themselves to protect their constitutional and other rights.
5. Plaintiffs do not seek to compel the defendants to exercise their discretion in a particular way. Plaintiffs seek relief mandating that defendants implement the judgment of their own professionals with regard to the plaintiff class. Plaintiffs seek injunctive relief mandating that the defendants provide plaintiffs with care, treatment and training suitable for persons with mental retardation, either in a facility for persons with mental retardation or by providing appropriate services at the psychiatric center.
JURISDICTION AND VENUE 6. The Court has jurisdiction over this action pursuant to 28 U.S.C. §1331, 1343(3) and 42 U.S.C. §1983. Pursuant to 28 U.S.C. §1391(b), the venue for this action lies in the United States District Court for the Northern District of New York
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because the claims arose there and it is the judicial district where all the defendants reside.
7. Plaintiffs have joined pendent claims under state law arising from the same factual situation. Plaintiffs invite defendants not to assert any Eleventh Amendment privilege, if any exists, so as to resolve all issues between the parties in this action and to avoid duplicative actions in federal and state courts.
PARTIES 8. Plaintiff, John R. is 32 years old and was admitted to Binghamton Psychiatric Center in September, 1978. He is disabled by reason of moderate mental retardation with behavioral symptoms. He brings this action by Bonnie H. Shoultz as guardian ad litem. John R. brings this action anonymously to avoid invasion of his privacy. His true name will be filed under seal with this Court. 9. Plaintiff John S. is 56 years old and was admitted to Mohawk Valley Psychiatric Center in 1971. John S. has been a resident of state psychiatric centers since 1954 when he was admitted to Harlem Valley Psychiatric Center. John S. has been "dually diagnosed" with schizophrenia as his primary mental impairment, with a secondary diagnosis of moderate mental retardation. He brings this action by Bonnie H. Shoultz as guardian ad litem. John S. brings this action anonymously to avoid
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invasion of his privacy. His true name will be filed under seal with this Court.
10. Plaintiff Patricia R. is 33 years old and was first admitted to Hutchings Psychiatric Center in 1975. Patricia R. has been "dually diagnosed" with schizophrenia and mild mental retardation. She brings this action by her sister, Mary Alice B. Patricia R. brings this action anonymously to avoid invasion of her privacy. Her true name will be filed under seal with this Court.
11. Bonnie H. Shoultz serves herein as guardian ad litem to plaintiffs, John S. and John R. These plaintiffs are moderately mentally retarded and are not capable of making informed decisions with regard to their care or treatment or prosecution of legal claims. John S. does not have parents or other relatives actively supervising or participating in decisions being made concerning his care or treatment. John R.'s mother is also disabled by reason of mental retardation and, therefore, a guardian ad litem is necessary to adequately protect John R.'s interests in this action.
12. Defendant Mario Cuomo, the Governor of the State of New York, is sued here in his official capacity. Governor Cuomo has overall responsibility to ensure that the agencies of the executive department of the New York State government, including the Office of Mental Health and the Office of Mental Retardation and
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Developmental Disabilities, act in full compliance with the New York and United States Constitutions, the laws of New York, and agency regulations. Specifically, Governor Cuomo has the overall responsibility to ensure that all persons in "state-custody" are safe and receive care, treatment, programs and services suited to their individual needs as recommended by defendants' professionals and as required by state law and regulations.
13. Defendant Richard C. Surles, the Commissioner of New York State Office of Mental Health (OMH) is sued here in his official capacity. Commissioner Surles is the chief executive officer responsible for the overall operation of the Mohawk Valley, Binghamton and Hutchings Psychiatric Centers, and for ensuring that all residents of these facilities/ including plaintiffs, are safe, and receive care, treatment, programs and services suited to their individual needs as recommended by defendants' professionals and as required by state law and regulations.
14. Defendant Elin Howe, the Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), is sued here in her official capacity. Commissioner Howe is the chief executive officer responsible for ensuring that plaintiffs, who are persons with mental retardation in state custody, are safe and receive care, treatment, programs and services suited to their individual needs as recommended by defen-
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dants' professionals and as required by state laws and regulations.
15. Commissioners, Surles and Howe, pursuant to New York State Mental Hygiene Law, its implementing regulations, and a cooperative agreement between OMH and OMRDD, are authorized and expected to work together to ensure that the care, treatment, programs and services provided by the State's psychiatric centers to plaintiffs are planned, developed and implemented comprehensively, that gaps in services to the multiply disabled are eliminated, and that no plaintiff is denied treatment and services
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because he or she suffers from more than one disability. N.Y. ' Mental Hygiene Law §5.05(b).
16. Defendant Richard M. Heath, the Director of Mohawk Valley Psychiatric Center,defendant Dwight Rhodes, the Director of Binghamton Psychiatric Center, and John R. Scott, the Director of Hutchings Psychiatric Center, are sued here in their official capacity. Richard M. Heath is the chief executive officer responsible for the operation of Mohawk Valley Psychiatric Center, Dwight Rhodes is the chief executive officer responsible for the operation of Binghamton Psychiatric Center, and John R. Scott is the chief executive officer responsible for the operation of Hutchings Psychiatric Center. Specifically, Mssrs. Heath, Rhodes, and Scott have the duty to ensure that all plaintiffs are safe, and receive care, treatment, programs and ser-
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vices suited to their individual needs as recommended by defendants' professionals and as required by federal and state law and regulations.
CLASS ALLEGATIONS 17. Plaintiffs John S.# John R. and Patricia R. bring this action on their own behalf and as a class action pursuant to Rule 23(a) and 23 (b)(2) of the Federal Rules of Civil Procedure. 18. The Plaintiff class consists of all current and future patients at Mohawk Valley Psychiatric Center, Binghamton Psychiatric Center, and Hutchings Psychiatric Center who are mentally retarded, and/or diagnosed as mentally retarded, and/or who have been regarded as mentally retarded, and (a) who never have been evaluated by defendants' professional staff to determine whether they require treatment, habilitation and services to respond to that impairment, or (b) who have been evaluated and determined to require treatment, habilitation or services but who have not received such treatment, habilitation or services, or (c) who have been evlaluated and determined to require treatment, habilitation or services but whose programs and services are not in accordance with accepted professional judgment, practice or standards. 19. Upon information and belief, the class is so numerous that joinder of all members is impractical. 20. There are questions of law and fact common to the class,
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specifically: whether the defendants have failed or refused to provide appropriate care and treatment to individuals residing ir. pyschiatric centers who are mentally retarded, and/or diagnosed as mentally retarded, and/or who have been regarded as mentally retarded.
21. The claims or defenses of the plaintiffs are typical of the claims of the class. Plaintiffs are class members and have no conflict of interest with other members of the class, all of whom would benefit from the ruling sought. The named plaintiffs have a significant stake in the outcome of the action, identical -.: that of all class members.
22. The representative plaintiffs will fairly and adequately protect the interests of the class. Plaintiffs are represented by Legal Services of Central New York, Inc. which is experienced in class actions and litigation involving persons with disabilities. Legal Services of Central New York, Inc. has been designated by the New York State Commission on Quality of Care to provide protection and advocacy services to persons with disabilities in Central New York.
23. Defendants have acted on grounds generally applicable to the class by violating their constitutional and statutory right to appropriate care and treatment.
24. This common conduct makes injunctive or corresponding declaratory relief as to the class appropriate under Rule
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23(b)(2) of the Federal Rules of Civil Procedure. If class

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certification is not granted, individuals must bring separate

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actions, thereby causing a waste of judicial and governmental

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j resources. Further, the very nature of the plaintiffs1 mental '

retardation and their institutionalization makes the bringing of j

individual suits unlikely. Upon information and belief, many

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patients do not have parents or guardians actively in contact

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with them, making joinder difficult. Without class

certification, these individuals' rights would go unprotected.

STATUTORY AND REGULATORY BACKGROUND

25. The type of facility and range of services appropriate

for persons with mental retardation meet the standards applicable

to Intermediate Care Facilities for the Developmentally Disabled

("ICF"). ICF level care is appropriate for persons who have,

inter alia, mental retardation, and habilitative and/or rehabili-

tative needs, evidenced by a moderate or severe deficit in their

communication, learning, mobility, ability to live independently,

self-control or behavior. ICF level care provides training to

permit the maximal development of skills that will enable its

recipients to function as independently as their handicapping

conditions will permit.

26. The standards for care and treatment of mentally

retarded persons in an ICF are set for in the 42 C.F.R. §§442.400

et. seq. and in the New York Mental Hygiene regulations at Part

681. Among other things, these standards restrict the persons who may live together, and state the intensity and type of programs that must be offered and the size and qualifications of the facilities' staff. 42 C.F.R. §§442.434-35 and 442.446 and 14 N.Y.C.R.R. §§681.6 and 681.7(b) also require defendants to develop an individual program plan for each plaintiff, and to develop sufficient programs and services to carry out each plaintiff's program plan.
27. Persons in need of ICF level care must be placed with other persons who have similar ages and functioning levels. 42 C.F.R. §442.444 and 14 N.Y.C.R.R. §681.4(c)(3) (xii)(a) prohibit housing persons who are of widely divergent ages, developmental levels and social needs in close proximity to one another unless there is a written plan stating how such a grouping will promote the growth and development of all the persons living together. One purpose of this requirement is to allow these persons to participate jointly in programs, recreation and other activities, and to allow them to serve as role models for, and to learn from each other.
28. Persons in need of ICF level care must receive "active treatment." The Mental Hygiene regulations state that active treatment requires an individual program that prescribes an integrated program of activities, experiences or therapies necessary for the client to reach program goals or
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objectives with the overall purpose to help the client function !

at the greatest physicial, intellectual, social or vocational

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level he or she can presently or potentially receive. 14

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N.Y.C.R.R. §681.13 and 42 C.F.R. §442.435.

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29. Active treatment must be delivered in a manner which is \
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normalizing and conducive to individual growth. Individual

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program plans are required to reflect this goal. 42 C.F.R.

§442.456 and 14 N.Y.C.R.R. §681.l(b).

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30. Among the programs and services that constitute active j

treatment are a specific "core" of services that must be provided ;
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on a daily basis. The Mental Hygiene regulations identify these

services which include inter alia, nutrition, recreation,

self-care, and vocational training and habilitation services. 14

N.Y.C.R.R. §§681.7, 681.13(dd) and 42 C.F.R. §442.435 and

§443.464.

31. Nutrition services are required to make meals a time for

learning rather than simply for eating. Recipients of these ser-

vices must be given utensils appropriate for their functioning

levels, receive training on how to use those utensils and to eat

appropriately, and be supervised by an adequate number of speci-

fically trained staff who will promote proper eating habits and

skills. 42 C.F.R. §442.472 and 14 N.Y.C.R.R. §681.7(d)(2).

32. Recreation must be a time for learning. Each person

requiring ICF level care must have the opportunity to participate

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in planned programs of leisure or recreation activities on a daily basis. This recreational time must be in addition to the :

time spent in active treatment. 42 C.F.R. §442.491 and 14

N.Y.C.R.R. §681.7(d)(3). Each facility is required to have ade-

quate capacity to provide transportation to and from recreation !

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programs. 42 C.F.R. §442.491 and 14 N.Y.C.R.R. §681.7(d)(6).

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33. Self-care training is required to improve the person's '

ability to independently perform routine activities of daily

•

living. The regulations require residents to receive training ir. j

bathing, brushing teeth, shampooing and grooming hair, shaving

and nail care. 14 N.Y.C.R.R. §681.7(d)(4); and 42 C.F.R.

§442.494, §§442.433, 442.478 and 442.494.

34. Habilitation services and vocational training programs

are required to teach skills that will be necessary for living

and working in the community. This training and services must be

appropriate to the person's chronological age and his or her

level of functioning, and designed to meet the objectives of the

person's individual treatment plan. It may include training

related to performing household chores, as well as vocational or

pre-vocational skills that will be needed for participation in

day-training or employment in a sheltered workshop or in the com-

petive economy. 14 N.Y.C.R.R. §681.7(d)(5); §681.13(dd ) (1) (v).

35. In addition to the core services, the regulations iden-

tify services that must be provided on a "routine" basis.

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Routine services must be provided regularly, but not necessarily on a daily basis. They include social services, which must be designed to maximize the person's social functioning. The regulations also identify "special" services, which must be provided when they are specified in a person's treatment plan, including speech, physical and occupational therapy. 42 C.F.R. §§442.486 - 442.498 and 14 N.Y.C.R.R. §§681;7(e) and (f).
36. The regulations identify the types of staff and staff ratios that must be present to provide the required programs and services. The number of staff for each core, routine and special service as well as direct care staff is stated in the regulations, and is dependent upon the mix of characteristics present among persons who are mentally retarded and persons who are multiply-handicapped persons. The regulations also mandate that all staff must undergo periodic training programs to update and improve their skills. 42 C.F.R. §§442.431, 442.445, 442.462, 442.464, 442.480, 442.490, 442.493, 442.498 and 14 C.F.R. §§681.2 and 681.8.
37. All mentally retarded and multiply handicapped persons who are patients in facilities operated by the Office of Mental Health ("OMH"), including plaintiffs, have a right to 11 individualized care and treatment. The Mental Hygiene Law ("MHL") at §33.03(a) states "[ejach patient in a facility and each person receiving services for mental disability shall
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receive care and treatment that is suited to his needs, and

skillfully, safely and humanely administered

"

38. The New York State Mental Hygiene Law (MHL) and Mental

Hygiene regulations (14 New York Code, Rules and Regulations)

mandate that OMH work cooperatively with OMRDD to plan for,

develop and implement a comprehensive system of programs and

services to meet plaintiffs' identified needs. MHL at §§7.07(a)

and 13.07(a). Their joint efforts are to ensure both the

comprehensiveness and quality of the programs and services that

are provided. Mental Hygiene Law at §§7.09(a) and 7.15(b) and

13.09(a) and 13.15(b) authorizes Commissioners Surles and Webb,

respectively, to enter into agreements for the conduct and

provision of services. The Mental Hygiene regulations at

§561.l{a) authorize the two Commissioners to allow OMRDD to

operate programs for the mentally retarded and developmentally

disabled in OMH facilities. Mental Hygiene Law at §5.O5(a)

directs the Commissioners of OMH and OMRDD to jointly visit and

inspect all facilities providing care and treatment to the

mentally disabled. Mental Hygiene Law §5.05(b); 5.07; 7.05; and

13.05, directs the Commissioners of OMH and OMRDD to work

together to develop long range plans for the care and treatment

of the mentally disabled. The Mental Health regulations at

§27.3(d) require OMRDD to ensure that service plans for the

mentally disabled are periodically evaluated. OMH and OMRDD have

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entered into agreements to carry out these statutory responsibilities.
39. The Mental Hygiene Law at §29.13(a) and the Mental Hygiene regulations at §27.3(aa) direct defendant Richard M. Heath, as Director of Mohawk Valley Psychiatric Center, defendant Dwight Rhodes, as Director of 3inghamton Psychiatric Center, and John R. Scott as Director of Hutchings Psychiatric Center to develop a written individualized treatment plan for every plaintiff in the three facilities.
40. The Mental Hygiene regulations at §27.1(b), implementing the MHL provisions, state that the purpose of the individual treatment plan is to provide all mentally disabled persons with an "individualized program of services which will maximize their ability to cope with their environment/ will foster social and vocational competence and will enable them to live as independently as possible." Under Mental Hygiene regulations §27.3(c), the plan's contents must describe the plaintiffs' treatment goals, and the methods, procedures, techniques and activities to be used to meet those goals. Both the plaintiffs and their plans must be re-assessed at regular intervals, to ensure the adequacy of the programs, treatment and therapies employed. 14 N.Y.C.R.R. §27(d).
STATEMENT OF FACTS A. Plaintiff Class Has Been Denied Care and Treatment
Appropriate for Person With Mental Retardation.
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1. Plaintiff class members do not reside with persons who are of similar ages and functional levels
41. At Binghamton Psychiatric Center, Mohawk Valley Psychiatric Center, and Hutchings Psychiatric Center, adult patients are not placed in a particular ward because of their particular developmental levels, ages or social needs. Plaintiff class members do not reside with other persons who have similar developmental levels and social needs. The mix of persons who reside with the plaintiffs is too divergent to promote plaintiffs' functional growth or development or maintain their level of skill and functioning at the time of their entry into the institution.
42. At Binghamton Psychiatric Center, John R. resides on a ward with long-term chronic patients of widely divergent ages whose primary diagnosis is mental illness. John R. is 32 years old. John R. is not mentally ill.
43. At Mohawk Valley Psychiatric Center, John S. resides on a unit where, upon information and belief, the majority of persons have a primary diagnosis of mental illness. John S. has been "dually diagnosed" with impairments of both mental retardation and mental illness.
44. Plaintiff John S. has resided in a geriatric unit, designed for older persons, since age 52.
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45. Plaintiff Patricia R. age 33, resides on a unit where

upon information and belief, the majority of patients do not have '

mental retardation. Patricia R. has been "dually diagnosed" with !

impairments of both mental retardation and mental illness.

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Patricia R. currently resides on a unit where the patients are of I

widely divergent ages.

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46. Upon information and belief, class members do not reside

with persons who are of similar ages and developmental levels in

accordance with federal and state regulations. 42 C.F.R.

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§442.444 and 14 N.Y.C.R.R. §681.4(c)(3)(xii)(a).

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2. Plaintiff class members do not receive

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programs and services appropriate to

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their individual needs

47. Binghamton Psychiatric Center, Mohawk Valley Psychiatric

Center, and Hutchings Psychiatric Center fail to provide programs

and services that are appropriate to class members' individual

needs, or that are necessary to maintain the level of skill and

functioning of the class members at the time of their entry into

the psychiatric center. Instead, upon information and belief,

the lives of the class members' are marked by an unchanging daily

routine largely filled with idle time. None of the plaintiffs

receives care and treatment that will permit achievement of the

functional goals stated in the federal and state regulations.

48. "Active treatment" required by the Mental Hygiene regu-

lations is not provided to plaintiffs. 14 N.Y.C.R.R.§681.13(a). -17-

49. The failure to provide sufficient programs and services to constitute "active treatment" also deprives plaintiffs of the "core" services to which they are entitled. Plaintiffs do not receive nutrition, recreation, self-care, or training and habilitation programs and services to meet their individual needs. Nutrition services which train plaintiffs in appropriate eating habits and use of utensils are not provided. OMH staff at times assist plaintiffs in eating, but class members have no structured learning programs for developing proper eating skills.
50. Appropriate recreation services are not provided. Class members' participation in community activities through recreation activities is not encouraged. Recreation, when provided, is not part of a program to achieve behavorial goals in plaintiffs' program plans. At Mohawk Valley, it is noted in his clinical record that John S. spends his days wandering the ward.
51. At Hutchings Psychiatric Cneter, it is frequently noted in Patricia R.'s clinical record that she spends her time pacing and wandering about the wards.
52. Class members do not receive self-care training which teaches them to maintain their skills in performing daily living activities such as bathing, grooming, and dressing or to achieve greater independence. These skills are necessary for class members to attend programming and live in the community away from
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the institution. 53. All of the class members require, but do not receive,
self-care training suited to their individual needs. Their individual needs vary, but as to all of the plaintiffs, the Binghamton, Mohawk Valley and Hutchings Psychiatric Center staff are only able to supervise and at times assist plaintiffs with these tasks. These staff efforts do not provide training that will lead to achieving the behavorial goals stated in any of the plaintiffs' program plans or to maintain their level of skill and functioning.
54. Habilitation and vocational training programs, which should teach class members the skills they will require to live in the community away from the institution are not provided. These include training related to performing household chores, as well as vocational or pre-vocational tasks that plaintiffs will require to participate in community based day programming, sheltered workshop employment, or employment in the competitive economy. None of the plaintiffs receives habilitation and vocational training programs that are designed to achieve behavioral goals in their program plans.
55. In addition to not providing the core services, Binghamton, Mohawk Valley, and Hutchings do not provide the "routine" and "special" services to which plaintiffs are entitled. Class members require extensive social services to
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modify and improve their inappropriate behaviors and their

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isolation on the wards.

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56. At Mohawk Valley Psychiatric Center, plaintiff John S. '

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exhibits the problem of pica. John S. eats cigarette butts and |

ashes, eats and plays with feces, drinks from urinals, and eats

paper and other waste basket items. OMH staff note that coun- j

seling has been ineffective in reducing pica. However, John S. |

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is not engaged in an active program to modify this behavior.

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57. Plaintiff John R. exhibits self-abusive and aggressive j

behavior and is teased and injured by other patients. However, |

none of these behaviors is being addressed by a behavior modifi-

cation program.

58. It is noted in Plaintiff Patricia R.'s clinical record

that she exhibits inattention to hygiene, poor dining habits,

scavenging for cigarette butts and probable polydipsia as a

result of her long-term institutionalization.

59. Upon information and belief, plaintiff class members are

isolated on their wards, with little or no interaction with

residents on other wards. Upon information and belief, the class

members' isolation on the wards is reinforced by their limited

communication skills, yet none receive communication training as

a special service to address these deficits.

60. It is noted in Plaintiff Patricia R.'s clinical record

that her speech is slurred at frequent intervals, and that as an

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apparent result of her mental retardation she appears to have difficulty understanding the staff.
61. Upon information and belief, the defendants' failure to
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provide appropriate programs and services to class members has I resulted in a deterioration in each class member's level of skill and functioning.
3. Plaintiff class members are not provided with care and treatment that will enable them to become de-institutionalized
62. In total, Binghamton Psychiatric Center, Mohawk Valley Psychiatric Center, and Hutchings Psychiatric Center do not provide care, treatment, programs and services to the plaintiffs in a manner which is normalizing and conducive to their individual growth as required by the Mental Hygiene regulations at §§25.l(b) and 681.l(b). Plaintiffs are not being taught the skills and behaviors they will need to live in the community away from the psychiatric centers. In several instances it is noted in the clinical records that plaintiffs John S. and John R., and Patricia R. have adopted institutionalized behavior and "culture".
63. None of the plaintiff class members is so handicapped as to require lifelong institutionalization. Persons with a degree of mental retardation equal to that of any of the class have been successfully placed in community-based residential settings. But
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absent the programs and services necessary to teach plaintiff

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class members the essential skills for community living, they

will be forced to remain in institutional settings.

4. Binghamton Psychiatric Center, Mohawk Valley Psychiatric Center, and Hutchings Psychiatric Center do not have sufficient numbers of appropriately trained staff to provide plaintiff class members with care, treatment, programs and services they require to maintain their skills and developmental levels, and protect them from bodily harm.

64. Binghamton, Mohawk Valley, and Hutchings do not have sufficient staff to provide care and treatment suited to plaintiff class members' individual needs. Upon information and belief, for much of the training plaintiff class members require, staff must work individually with each plaintiff class member, while providing verbal and physical assistance, or hand-over-hand demonstrations of activities, and extensive repetition of each activity. The Mental Hygiene regulations at §681.12 identify the staff-to-patient ratios that are required for these programs and services. Upon information and belief, the staff-to-patient ratios in the plaintiff class members' wards at Binghamton, Mohawk Valley, and Hutchings do not meet the criteria required by the regulations. OMRDD does not generally make its staff available to the psychiatric centers, and neither OMH nor OMRDD has contracted to have the staff of a community based service

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provider work with plaintiff class members at the psychiatric center.
65. The Binghamton, Mohawk Valley, and Hutchings staff also are not trained to provide the full range of programs and services that the plaintiff class members require. Ongoing staff training programs are required by the Mental Hygiene regulations at §681.8(b)(13);(14) but upon information and belief, there is no training in the care and treatment of persons with mental retardation for the staff at these facilities.
66. Defendants have failed to provide the environment and the training for plaintiff class members that protects them against physical harm and preserves their basic self-care skills.
67. Since August, 1989, plaintiff Patricia R. has suffered a broken arm, an assault by fellow patients and a broken leg. Upon information and belief, the lack of sufficient numbers of staff was a contributing factor in these occurences.
68. The lack of sufficient numbers of staff to provide programs and services to mentally retarded persons makes it impossible for the members of the plaintiff class to receive care and treatment that is suited to their individual needs or needed to maintain their level of skill and development, and to protect them from bodily harm.
5. Plaintiffs have been denied care and treatment as recommended by defendants' professionals.
69. The professional staff at Binghamton Psychiatric Center, Mohawk Valley Psychiatric Center and Hutchings Psychiatric Center
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who are involved with plaintiffs' care have stated that they require care and treatment that addresses the learning and independent functioning deficits caused by plaintiffs' mental retardation and that they require care, treatment and programs appropriate for persons with mental retardation.
70. In the case of plaintiffs John S., John R. and Patricia R., it is the judgment of defendants' professionals that continued residence at facilities operated by OMH is detrimental to those plaintiffs, and that a placement providing .care, treatment and programs appropriate for persons with mental retardation is necessary to prevent further deterioration in their skills and development.
71. The professional staff at Binghamton Psychiatric Center and Hutchings Psychiatric Center has sought to obtain care and treatment for John R. and Patricia R. by referring these plaintiffs to OMRDD. OMRDD is the New York State government agency responsible for the care and treatment of persons who are mentally retarded.
72. The professional staff at Mohawk Valley Psychiatric Center has recommended that John S. be placed in a setting specifically designed for the implementation of behavior modification programs.
73. Defendants have not transferred plaintiffs, John S., John R. and Patricia R. to settings with programs appropriate for
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persons with mental retardation and/or to settings with behavior modification programs as recommended by defendants' professionals. Defendants have continued the plaintiffs in psychiatric facilities lacking the staff, programs and ability to provide appropriate care and treatment to persons with mental retardation.
74. Defendants have failed to provide to plaintiffs John R., John R. and Patricia services and programs suitable to their diagnosis of mental retardation at the psychiatric facilities where they now reside.
75. Upon information and belief, the defendants have engaged in and continue to engage in a pattern and practice of failing to implement the recommendations of their own professionals with regard to the care, treatment, programs and services provided to plaintiff class members.
8. Plaintiff Class Members are not Receiving Care and Treatment Required by State Law and Regulations
76. Plaintiff class members have not received care and treatment suited to their needs, and have not received treatment in a skillful or safe manner.
77. Upon information and belief, Binghamton, Mohawk Valley and Hutchings Center do not have written plans stating how plaintiffs' functional growth or development will be further
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enhanced either by the services they currently receive or by their current residential placement.
78. The class members' treatment plans do not meet the requirements of the Mental Hygiene regulations. The plans do not comprehensively describe how each of plaintiffs' functional deficits will be addressed, or identify the goals that are to be achieved.

79. The OMH staff at Binghamton Psychiatric Center, Mohawk Valley, and Hutchings Psychiatric Center have not been trained tc write a treatment plan or provide services adequate to address the individual needs of the class members. The OMH staff at the psychiatric centers is trained to evaluate, plan for and provide

care, treatment and rehabilitation to persons with acute and

chronic mental illnesses. The Mental Hygiene regulations at

§ 8 2 . K b ) governing the operation of the psychiatric centers

states the methods, procedures and practices used to provide

care, treatment and rehabilitation to persons with mental illness. Mental illness is an impairment distinct and different j from mental retardation. The treatment provided in response to

mental illness is not the same as those used to provide training |
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and rehabilitation to persons with mental retardation.

Developing a treatment plan for plaintiffs requires specialists

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in mental retardation with training experience in that field;

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such specialists are not present at Binghamton, Mohawk Valley or !

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Hutchings Psychiatric Center. 80. OMRDD has not provided training to the OMH staff so that
they will be able to evaluate and write treatment plans for the class members. Upon information and belief, OMRDD has not sent its own staff to Binghamton, Mohawk Valley or Hutchings Psychiatric Centers to perform these tasks directly. Neither OMH nor OMRDD has contracted for the class members to be evaluated and have their treatment plans written by a qualified community based service provider.
FIRST CLAIM FOR RELIEF 81. Defendants have violated plaintiffs' right under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States and 42 U.S.C. §1983 by failing to provide services and programs and/or placements to which members of the plaintiff class are entitled.
SECOND CLAIM FOR RELIEF 82. Defendants have violated plaintiff class members' rights under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States and 42 U.S.C. §1983 by failing to provide adequate care and treatment to keep plaintiff class free from bodily harm.
THIRD CLAIM FOR RELIEF 83. Defendants have violated plaintiff class members' rights under the Due Process Clause of the Constitution of the United
-27-

States and 42 U.S.C. §1983 by engaging in a pattern and practice of failing to provide care and treatment which defendants' professionals have determined to be necessary for the adequate training and habilitation of said class members.
FOURTH CLAIM FOR RELIEF 84. Defendants have violated plaintiff class members' rights under the Due Process Clause of the Constitution of the United States and 42 U.S.C. §1983 by failing to provide the care and treatment necessary to preserve plaintiff class members basic self-care skills and to prevent deterioration thereof.
FIFTH CLAIM FOR RELIEF 85. Defendants have violated plaintiff class members' rights guaranteed by the New York Mental Hygiene Law and regulations thereunder by:
(a) failing to provide plaintiff class members with the care and treatment stated in their individual treatment plans;
(b) failing to provide care, treatment programs and services appropriate to persons with mental retardation;
(c) failing provide the care and the treatment defendants' professionals determined that plaintiff class members require, and
(d) failing to provide appropriate numbers of adequately trained staff to provide the programs and services required to implement plaintiff class members' individual
-28-

treatment plans.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs request that the Court grant the

following relief:

1. Certify this action as a class action, and certify a

j

class consisting of all current and future patients at Mohawk

•

Valley Psychiatric Center, Binghamton Psychiatric Center, and

j

Hutchings Psychiatric Center who are mentally retarded, and/or !

diagnosed as mentally retarded and/or who have been regarded as !

mentally retarded; and (a) who never have been evaluated by

'

i

defendants' professional staff to determine whether they require {

treatment, habilitation and services to respond to that impair-

ment, or (b) who have been evaluated and determined to require

treatment, habilitation or services but who have not received

such treatment, habilitation or services, or (c) who have been

evlaluated and determined to require treatment, habilitation or

services but whose programs and services are not in accordance

with accepted professional judgment, practice or standards; and

2. Declare that defendants' failure to provide such training

and placement as is necessary to implement the judgment of

defendants' professional staff concerning plaintiff class

members' training and placement needs violates their liberty

interest which is guaranteed by the Due Process Clause of the

Fourteenth Amendment to the United States Constitution and 42

-29-

U.S.C. S1983 and 28 U.S.C. §2201 and §2202; and 3. Declare defendants failure to provide training and an
environment for class members that protects them against physical harm and preserves their basic self-care skills violates plaintiffs liberty guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution and 42 U.S.C. §1983; and
4. Direct, through a permanent injunction, that defendants provide to plaintiffs services and programs in the psychiatric centers suited to diagnosis of mental retardation or, that they be placed in another facility where they will receive programs and services that will provide them with appropriate care and treatment; and
5. Direct, through permanent injunction, that defendants provide class members with the training and environment necessary to protect class members from physical harm and to preserve their basic self-care skills; and
6. Declare that defendants have failed to provide plaintiff class members with care and treatment suited to their individual needs, based upon an individualized treatment plan, and that defendants have failed to provide the staff, programs and services required to meet the goals and objectives stated in those plans, and that such failures violate plaintiff class members' rights to care and treatment guaranteed by the New York
-30-

I
Mental Hygiene Law and regulations; and 7. Permanently enjoin defendants immediately to commence to
provide all class members with care and treatment suited to their ! individual needs based on an individualized assessment and treatment plan; and immediately to commence providing the staff, programs and services required to meet the goals and objectives stated in those plans; and
8. Direct defendants to pay to plaintiffs' their litigation costs and reasonable attorneys' fees pursuant to 42 U.S.C. §1988; and
9. Grant such other and further relief as the Court may deem just and proper.

Dated: Syracuse, New York March 14, 1990

Respectfully submitted,

W !A

StfSAN M. YOUNG, E S Q . 7

/ .*

if

FREDERICK M. STANCZAK, ESQ. Director of Litigation
GEORGE H. McKAY, ESQ. LEWIS A. GOLINKER, ESQ. ROGER S. MANNING, LAW GRADUATE Attorneys for Plaintiffs LEGAL SERVICES OF CENTRAL NEW YORK, INC. 633 South Warren Street Syracuse, New York 13202 (315) 475-3127

-31-

 
 John S. v. Cuomo, Not Reported in F.Supp.2d (1999)
1999 WL 592693 Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
JOHN S. and John R., by their next friend, Bonnie H. Shoultz, and Patricia R., by her sister Mary Alice B., Individually, and on behalf of all other similarly situated individuals, Plaintiffs, v.
Mario CUOMO, as Governor of the State of New York; Richard C. Surles, as Commissioner of the New York State Office of Mental Health; Ms. Elin Howe, as Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities; Richard M. Heath, as Director of the
Mohawk Valley Psychiatric Center; Dwight Rhodes, as Director of the Binghamton Psychiatric
Center; and John R. Scott, as Director of Hutchings Psychiatric Center, Defendants.
No. 90–CV–294 (NPM). | July 29, 1999.
Attorneys and Law Firms
Syracuse University College of Law Public Interest Law Firm II, Syracuse, New York, for Plaintiffs (Sarah Betsy Fuller, of Counsel)
Legal Services of Central New York, Inc., Syracuse, New York, for Plaintiffs (Susan M. Young, Paul F. Kelly, of counsel).
Frederick M. Stanczak, Haddonfield, NJ, for Plaintiffs.
Honorable Eliot Spitzer, Attorney General of the State of New York, Albany, New York, for Defendants, (Richard J. Freshour, assistant Attorney General, of counsel.
Opinion
MEMORANDUM–DECISION AND ORDER
MCCURN, Senior J.
INTRODUCTION
*1 Plaintiffs move for attorney’s fees as the prevailing party. The Public Interest Law Firm (“PILF”) seeks $124,306 in attorney’s fees comprised of 204.7 hours of supervising attorney work at $175 per hour, 1,152.1 hours

of student attorney work at $75 per hour, and 34.6 hours of research assistant work at $60 per hour.1 PILF also requests costs of $377.92. Legal Services of Central New York (“LSCNY”) seeks $116,031.75 in attorney’s fees comprised of 724.17 hours of attorney work at $150 per hour, and 98.75 hours of attorney travel at $75 per hour. LSCNY also requests costs of $10,215.98. Attorney Fred Stanczak seeks attorney’s fees for hours he expended in furtherance of this litigation while not employed by either PILF or LSCNY in the amount of $3,658.75 comprised of 17.05 hours of work at $175 per hour, and 9 hours of travel at $75 per hour.2 Defendants oppose a limited amount of the fees sought, mainly the work of law students in PILF, and complain of billing redundancy by LSCNY attorneys. Defendants also object to the hourly rates sought for both law students and attorneys, arguing that students are only entitled to $30 per hour and attorneys are only entitled to $150 per hour. Oral argument was held in Utica, New York on July 13, 1999.
DISCUSSION
I. STANDARD FOR ATTORNEY’S FEES
In an action brought pursuant to 42 U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs[.]” 42 U.S.C. § 1988(b) (West Supp.1999). Defendants concede that plaintiffs fall within the meaning of the term “prevailing party.”
To determine the reasonable fee, the court first calculates the “lodestar” amount by multiplying the attorney’s reasonable hourly rate by the number of hours reasonably expended. See Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 944, 103 L.Ed.2d 67 (1989); Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). In making such a determination, “the district court does not play the role of an uniformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.” Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.1998) (citation omitted). “If the court determines that certain claimed hours are ‘excessive, redundant, or otherwise unnecessary,’ the court should exclude those hours in its calculation of the lodestar.” Id.
II. REASONABLE HOURLY RATE
1

John S. v. Cuomo, Not Reported in F.Supp.2d (1999)
To calculate the reasonable hourly rate, the court uses the prevailing rate of the Northern District of New York for the types of services rendered by lawyers with reasonably comparable skill, experience and reputation. See Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1159 (2d Cir.1994). In protracted and lengthy litigation, as here, courts often divide an award into separate phases, and apply a current, higher rate for more recent work, and a historic rate for work completed during an earlier phase. See Saulpaugh v. Monroe Comm. Hosp., 4 F.3d 134, 146 (2d Cir.1993); Grant v. Martinez, 973 F.2d 96, 100 (2d Cir.1992), cert. denied, 506 U.S. 1053, 113 S.Ct. 978, 122 L.Ed.2d 132 (1993); New York Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1153 (2d Cir.1983); Berry v. New York State Dep’t of Correctional Servs., 947 F.Supp. 647, 650 (W.D.N.Y.1996); Walker v. Coughlin, 909 F.Supp. 872, 878 (W.D.N.Y.1995); Macko v. General Motors Corp., 1988 WL 73446, at *3 (N.D.N.Y.1988). As this case has been litigated over a nine year period, the court will use a historic rate for work done prior to this year.
*2 As far back as 1988, courts in this district have awarded an hourly rate of $150 for experienced attorneys. See Schenectady News, Inc. v. City of Schenectady, 1988 WL 50653, at *1 (N.D.N .Y.1988); Macko, 1988 WL 73446, at *3. From 1988 until March of this year, this rate has prevailed. See TM Park Ave. Assocs. v. Pataki, 44 F.Supp.2d 158, 166–167 (N.D.N.Y.1999). The vast majority of work done by PILF and LSCNY attorneys took place between 1990 and 1998. As such, and because each of the attorneys working on the case during this period was experienced, the court sets the historic rate for this work at $150 per hour. As the prevailing rate in this district for experienced attorneys has recently increased to $175 per hour, see id., the court sets this higher rate for work performed after January 1, 1999.
The court next discusses the hourly rate for law students. PILF argues it is entitled to $75 per hour for student attorney work; defendants claim $30 per hour is the proper amount.3 Neither party is correct. Courts in this district have been awarding student attorneys, law students and paralegals $50 per hour for quite some time.4 See TM Park Ave. Assocs., 44 F.Supp.2d at 167; Carroll v. DeBuono, 48 F.Supp.2d 191, –––, 1999 WL 288593, at *1 (N.D.N.Y.1999); Ellis v. Apfel, 1998 WL 480861, at *2 (N.D.N.Y.1998); Hannigan v. Board of Educ., 1997 WL 10971, at *3 (N.D.N.Y.1997). This amount has not changed despite the recent increase in the prevailing hourly rates for some attorneys. See TM Park Ave Assocs., 44 F.Supp.2d at 167.
PILF urges the court to award a higher hourly rate to student attorneys than to other law students or paralegals because of the added responsibility student attorneys are allowed to undertake. See N.D.N.Y. General Order No. 33. General Order No. 33 allows student attorneys

practicing under an order of the court to appear as counsel in court or at other proceedings and to prepare and sign legal papers in connection with their representation of clients. See General Order No. 33 (4)(a) and (b). General Order No. 33, however, makes clear that the ultimate responsibility for a case belongs to the supervising attorney, not the student, as the supervising attorney must appear with the student in all proceedings before the court, see General Order No. 33 (2)(d), sign all documents prepared and signed by the student, see General Order No. 33 (4)(b), and “[a]ssume personal professional responsibility for the student’s work.” General Order No. 33 (2)(b). Consequently, while student attorneys may be able to perform certain functions that other law students and paralegals cannot, in every matter before this court an admitted attorney bears full responsibility for the work of student attorneys, law students and paralegals. As such, the court declines to award a higher hourly rate for student attorney work as compared to the work of other law students or paralegals. In doing so, the court adheres to both its own prior decision awarding a Cornell Law School Clinic student attorney the same rate as other law students, see Ellis, 1998 WL 480861, at *2 ($50 per hour), and a decision of Judge Scullin involving the Albany Law School Clinic, see Hannigan, 1997 WL 10971, at *3 (same).
*3 This $50 rate has been awarded since approximately the inception of this litigation. See Abou–Khadra v. Bseirani, 971 F.Supp. 710, 718–19 (N.D.N.Y.1997) (“[T]he historic rate for paralegals and law clerks in this district from 1991 ... is $50 per hour[.]”). Thus, $50 per hour is warranted as the historic rate of compensation for student attorneys who worked on this case from years 1990 to 1998. As to law student work performed after January 1, 1999, the court has been persuaded by PILF that $50 per hour no longer represents the prevailing hourly rate. Recently, Chief Judge McAvoy found that an increase in the rates of experienced and mid-level attorneys was warranted, but declined to increase the rate for non-lawyers, where plaintiffs there failed to offer evidence that this rate should be increased. See TM Park Ave Assocs., 44 F.Supp.2d at 167. In the matter at hand, PILF has supplied evidence that four law firms in the Syracuse area currently bill law student work to clients at rates between $60 and $90 per hour. See Fuller Aff. Ex. 2. On the basis of these affidavits, a review of the prevailing rates in nearby districts, and the court’s familiarity with the rates charged by law firms in this district, the court agrees that the rate of $50 per hour is no longer appropriate. Thus, the court awards $65 per hour for law student work completed after January 1, 1999.
Finally, as LSCNY and Stanczak note, attorneys and law students will not be reimbursed at their normal hourly rate for travel. See McLaughlin v. State of New York, 1998 WL 915431, at *2 (N.D.N.Y.1998); TM Park Ave Assocs., 44 F.Supp.2d at 167. Rather, in the absence of a showing
2

John S. v. Cuomo, Not Reported in F.Supp.2d (1999)
by the fee applicant that travel time was productive, the court allows one-half the usual hourly rate for travel.5 McLaughlin, 1998 WL 915431, at *2.
The court next considers the amount of hours reasonably expended in the furtherance of this case. As part of its review, the court specifies which hours claimed by PILF are attributable to travel, as it failed to do so.
III. HOURS REASONABLY EXPENDED
A. PILF STUDENTS
Student Cunningham: Cunningham’s entry for 9/30/93 must reflect 2 hours travel. Likewise, his 2/23/94 entry must reflect .5 hours travel.
Student Eckstein: Eckstein’s entry of 12/20/94 must reflect 2 hours travel. As properly objected to by defendants, Eckstein bills an unreasonable amount of hours researching attorney’s fees. Consequently, the 18 hours spent researching this subject are reduced to 4.5 hours.
Student Edwards: Edwards’ entry of 9/22/93 must reflect 2 hours travel. Her other entries are deserving of reduction because of their particularly vague descriptions. Accordingly, her 9/28/93, 10/26/93, 11/2/93, 11/9/93, 11/16/93, 11/23/93 and 11/29/93 entries, or 4.6 hours, are disregarded in calculating the lodestar.
Student Ginsberg: Ginsberg’s entry of 9/22/93 must reflect 2 hours travel. Likewise, her 12/1/93 entry must reflect 2.5 hours of travel. As properly objected to by defendants, Ginsberg spent an excessive amount of hours researching “who our experts can talk to.” Accordingly, her 10/27—11/8/93 entries on this subject, 24.4 hours, are reduced to 6.1 hours. Moreover, several of Ginsberg’s entries are unduly vague, and as such, are disregarded in calculating the lodestar. Thus, her 11/9/93, 2/10/94, 2/17/94 and 3/03/94 entries for “supervision,” 2.6 hours, are not considered.
Student Harrington: *4 Defendants do not object to any of Harrington’s

entries, nor do any of these entries appear to be for travel.
Student Jain: Jain’s entry of 9/29/92 must reflect 2.5 hours of travel. As defendants properly note, Jain’s billing of 27 hours on “burdensome discovery under Second Circuit” is not proper billing judgment. This amount is reduced to 6.75 hours.
Student Jun: Defendants object to 6 hours of Jun’s billing for discovery matters. PILF agrees this time should be reduced. See Fuller Reply Aff. at ¶ 3. Defendants also object to 21 hours of Jun’s other research; the parties disagree as to whether this amount should be reduced. These entries will be reduced when all student hours, as a whole, are reduced by a percentage at the end of this subsection. Jun’s 5/25/94 entry of 2 hours, however, “prepared for presentation” is disallowed as vague.
Student Kahn: Though defendants have no specific objection to Kahn’s billing, her 11/8/91, 11/25/91 and 3/11/92 entries must reflect 2 hours travel each, or 6 hours total.
Student Krieger: Defendants first challenged Krieger’s billing of 14.5 hours for preparation of a “case presentation memorandum” and educating herself on discovery techniques. PILF no longer seeks fees for these hours. See Fuller Reply Aff. at ¶ 3. Defendants also properly contest excessive and redundant billing for Krieger’s research of attorney’s fees. Krieger’s entries of 9/13/90,6 9/14/90, 9/15/90 and 9/16/90 are reduced as follows: first, the 9/13 entry is reduced by 5.05 hours, as stated in the footnote below. The remainder of the amount, 10.25 hours, is reduced to 2.56 hours. Defendants also object to 11 hours billed for researching and writing a lawyer’s affidavit, and 13.5 hours devoted to researching regulations and revising interrogatories. While these amounts seem extravagant, they will be reduced when all student hours, as a whole, are reduced. Krieger’s entries for 3/26/91 and 5/8/91 must reflect .5 and 2 hours travel respectively.
Student Levi: Defendants object to approximately 37 hours spent by Levi on the issue of conflict of interest. This amount will be reduced when all student hours, as a whole, are
3

John S. v. Cuomo, Not Reported in F.Supp.2d (1999)
reduced. Levi’s entries of 9/29/92 and 10/20/92 must reflect 5 hours travel.
Student Mentor: Defendants object to 35.5 hours spent by Mentor on an interrogatories memorandum, and 10 hours spent researching expert witnesses. These amounts will be reduced when all student hours, as a whole, are reduced.
Student Sovie: Sovie’s entry of 6/4/93 must reflect 2 hours travel. Defendants do not object to any billing by Sovie.

time sheets submitted by PILF, the court finds that a further reduction of 40% is warranted to the hours PILF claims for student attorney work. Accordingly, PILF may properly claim fees for 625.87 hours of reasonable student attorney work, and 35 hours for student attorney travel. A similar reduction of 40% is necessary to the hours PILF seeks for Skylakos, bringing her reasonable hours billed to 20.76.
At $50 per hour for 625.87 hours of reasonable student attorney work, and half this rate for 35 hours of student attorney travel time, PILF is entitled to $32,168.50. At $50 per hour for .18 hours of Skylakos’ reasonable work (performed prior to January 1, 1999) and $65 per hour for 20.58 hours of reasonable work (performed after January 1, 1999), PILF is entitled to an additional $1,346.70.

Student Stern: Defendants challenge 28.3 hours billed to prepare a second set of interrogatories and object to 107.5 hours billed to research damages, the right to treatment, and consent. These hours will be reduced when all student hours, as a whole, are reduced. Stern must have his billing entries of 11/8/91, 11/19/91 and 11/25/91 reflect a total of 6 hours travel.
Student Zlon: *5 Defendants claim Zlon unreasonably billed 21 hours for various projects. These hours will be reduced when all student hours, as a whole, are reduced.
Research Assistant Skylakos: Defendants do not object to any billing by Skylakos.
Total: Reducing hours as noted above, PILF student attorneys put in 1043 .11 hours of work and 35 hours of travel. This number does not reflect the reasonable amount of hours spent on this litigation, however. “Working on this action constituted part of these students’ law school education. The Court heartily approves of providing students with this valuable learning experience. It would be inequitable, however, to ask defendant to subsidize this portion of the students’ education.” Jones v. Kreisel Co., Inc., 1995 WL 681095, at *4 (S.D.N.Y.1995) (emphasis supplied) (court reduced Brooklyn Law School legal clinic’s claimed hours by approximately 66%). The court finds a great deal of the remaining 1043.11 hours of work completed by PILF student attorneys vague, excessive, redundant or otherwise unnecessary. Having laboriously reviewed the

B. PILF FACULTY Defendants only dispute 11.5 hours of one faculty member’s billings. PILF has agreed to reduce this amount. See Fuller Reply Aff. at ¶ 3. Several other billing entries must be adjusted, however. Fuller’s entry of 3/26/99 must reflect travel of .3 hours. Goldenberg’s entry of 7/2/94 must reflect 3 hours travel. Hoft’s entry of 11/17/94 must reflect 2 hours travel. Similarly, Kanter’s entries on 5/8/91, 11/25/91 and 3/11/92 must reflect 2 hours each for travel. Further, Kanter bills 11.7 hours, presumably including travel, for a “tour of Mohawk Valley Psychiatric Center.” This entry is vague, and the court is not able to discern the necessity of such a tour. The court thus disallows the entry.
After the above reductions, PILF attorneys put in 181.7 hours of work,7 and 11.3 hours of travel. The court finds a further reduction of 20% is necessary to make the amount of hours sought by PILF reasonable. Many of the hours billed by PILF attorneys were to supervise students, review student work, and facilitate group meetings with students. In a law school environment, this is completely acceptable, but defendants should not bear the burden, and expense, of educating law students. After the 20% reduction, PILF may properly seek compensation for 145.36 hours of reasonable attorney work. These hours, as discussed above, are broken into two periods; PILF is awarded $150 per hour for work completed prior to January 1, 1999, and $175 per hour for work completed after this date. At $175 per hour for 20 hours of work, .3 hours of travel at half this rate, $150 per hour for 125.36 hours of work and 11 hours of travel at half this rate, PILF is entitled to $23,155.25.
C. PILF COSTS *6 PILF moves for costs of $377.92. The court declines to award $265 .42 of this amount, which appears to be for
4

John S. v. Cuomo, Not Reported in F.Supp.2d (1999)

milage on four case-related trips. While PILF sets forth the amount of money sought for each trip, and who traveled, neither the amount of miles, nor the amount per mile sought are specified to the court. Moreover, the court notes that PILF attorneys and students made far more than four trips to various psychiatric centers and court hearings. PILF supplies no documentation, explanation or affidavit to the court explaining these travel expenses. As PILF has not established its entitlement to this amount, the court disallows it. The remainder of the costs sought, $112.50, for long distance telephone calls and photocopying, is properly recoverable. See LeBlanc–Sternberg v.. Fletcher, 143 F.3d 748, 763 (2d Cir.1998).
D. LSCNY Defendants object to three billing entries of LSCNY attorneys, where on 7/25, 7/26 and 7/27/94 each attorney claimed 23 hours for engaging in similar activities. The court agrees these hours are unreasonable, and allows the billing of only one attorney on these dates. Thus, the court reduces 46 hours billed for work, and 11 hours billed for travel. The remainder of hours billed by LSCNY attorneys appear reasonable.
Though LSCNY sought only $150 per hour for its attorneys, it moved to amend its fee request to $175 per hour at oral argument. As mentioned previously, however, the court awards the historic rate of $150 per hour for work performed prior to January 1, 1999. The court awards $175 per hour for the small amount of work performed after this date. Accordingly, LSCNY is entitled to attorney’s fees for 14 hours of work at $175 per hour, 664.17 hours of work at $150 per hour, and 87.75 hours of travel at $75 per hour (all travel took place prior to

January 1, 1999), or $108,656.75.
LSCNY also moves for reimbursement of certain costs and expenses. Defendants do not object to these amounts, and the court holds them recoverable. Thus, the court awards LSCNY costs of $10,215.98.
E. STANCZAK Defendants do not dispute any of Stanczak’s private billing. Having reviewed the hours billed and found them reasonable, Stanczak is entitled to attorney’s fees for 11.6 hours of work completed after January 1, 1999 at $175 per hour, 9 hours travel at half this rate, and 5.45 hours of work completed prior to January 1, 1999 at $150 per hour, or $3,635.
CONCLUSION
There is a strong presumption the lodestar calculations set forth above are the reasonable fees, and the court finds no reason to adjust the lodestar. See City of Burlington v. Dague, 505 U.S. 557, 561, 112 S.Ct. 2638, 2641, 120 L.Ed.2d 449 (1992). Consequently, plaintiffs’ counsel are entitled to attorney’s fees and costs of $179,290.68. This is apportioned as follows: $56,782.95 in fees and costs for PILF, $118,872.73 in fees and costs for LSCNY, and $3635 in fees for Stanczak.
IT IS SO ORDERED.
	  

Footnotes

1

Originally, PILF sought compensation for a slightly larger amount of hours, but reduced thirty-two hours which were challenged

by defendant. See Fuller Reply Aff. at ¶ 3.

2

Stanczak seeks attorney’s fees for 17.85 hours of work. See Stanczak Aff. at ¶ 10. His calculations are not quite accurate, however,

as the total number of hours he worked as reflected on his time sheets is 17.05 hours. See Stanczak Aff. Ex. 1.

3

Defendants do not distinguish between student attorneys and Skylakos, the research assistant. Presumably, defendants argue that

the proper rate for all law students is $30 per hour.

4

As defendants note, Judge Munson awarded only $30 per hour to PILF student attorneys last year. See Albro v. County of

Onondaga, 1998 WL 52013 (N.D.N.Y.1998). Albro is distinguishable, however, because in that case PILF merely monitored the

County’s compliance with a consent decree and higher compensation was unnecessary. See id. at *4 (“the court finds that a reduced

rate for monitoring [ ] is applicable here”).

5

LSCNY and Stanczak each set forth which hours billed were for travel as opposed to legal work. PILF failed to do this, leaving the

court to wade through the voluminous time records of five supervising attorneys and fourteen student attorneys to determine how

many of its claimed hours are attributable to travel. “The Court should not be obligated to scour the voluminous billing records

submitted, pull out all time entries related to travel, and make the requisite calculations. Rather, this was plaintiffs [sic] duty,

subject to a review by the Court for reasonableness.” TM Park Ave. Assocs., 170 F.Supp.2d at 170. Unlike in TM Park Ave.

Assocs., this court will not reduce PILF’s claimed hours as a penalty for failing to set forth hours related to travel. In any future fee

5

John S. v. Cuomo, Not Reported in F.Supp.2d (1999)

application, however, the court expects PILF to diligently set forth its travel time.

6

Though PILF claims 7.8 hours for Krieger’s work on September 13, 1990, a review of the time sheets reveals that just 2.75 hours

were billed. Accordingly, the 5.05 hours improperly claimed by PILF is not considered.

7

Pursuant to Fuller’s request in her reply affidavit, four hours are added to her billing to reflect time spent drafting a reply.

	  

6

 
 John S. v. Cuomo

™m m

•• •• •• • •

MR-NY-002-002

CLARENCE J. SUNDRAM
CHAIRMAN
ELIZABETH W. STACK WILLIAM P. BENJAMIN
COMMISSIONERS

ADVOCACY SERVICES BUREAU STATE OF NEW YORK
COMMISSION ON QUALITY OF CARE
99 WASHINGTON AVENUE, SUITE 1002 ALBANY, NEW YORK 12210-2895 (518) 473-7378 VOICE (800) 624-4143 VOICE/TDD (518) 474-2652 FAX
December 20,1996

MARCEL CHAINE
DIRECTOR ADVOCACY SERVICES

Ms. Mary Hayden University of Minnesota Institute on Community Integration 214 Pattee Hall 150 Pilsbury Drive S.E. Minneapolis,Minnesota 55455

Dear Ms. Hayden:

Enclosed are briefs which were filed on behalf of individuals with developmental

disabilities who were being inappropriately served in Psychiatric Centers. Benjamin B

v. Cuomo preceded John S v. Cuomo but the facts and arguments are almost •

identical.

• •

•

_

/

As you can imagine, both files are pretty thick with motions and cross motions, but, I believe that the enclosed will give you all the necessary information. If you have any further questions,please feel free to call or write.

wish you good luck with your endeavor.

Sincerely,

William Combes A.C.S.W. PADD Director

AN EQUAL OPPORTUNITY/AFFIRMATIVE ACTION EMPLOYER REASONABLE ACCOMMODATION WILL BE PROVIDED ON REQUEST

 
 CM/ECF LIVE - U.S. District Court - NYND - Docket Report

Page 1 of 13

CLOSED
U.S. District Court Northern District of New York [LIVE - Version 2.5] (Syracuse)
CIVIL DOCKET FOR CASE #: 5:90-cv-00294-NPM

S., et al v. Cuomo, et al Assigned to: Senior Judge Neal P. McCurn Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff
John S. by his next friend Bonnie H. Shoultz

Date Filed: 03/14/1990 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Arlene S. Kanter Public Interest Law Firm Syracuse University Law College Main Campus Syracuse, NY 13244-1030 315-443-4582 TERMINATED: 05/04/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Goldenberg Syracuse University Law College P.O. Box 6543 Syracuse, NY 13217-6543 315-443-4587 Fax: Fax: 315-443-3636 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederick M. Stanczak Office of Frederick M. Stanczak 179 North Broad Street Doylestown, PA 18901 215-340-5000 Fax: 215-340-2412 Email: FSTANCZAK@MSN.COM TERMINATED: 07/30/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Betsy Fuller Prisoners' Legal Services 118 Prospect Street Babcock Hall, Suite 307 Ithaca, NY 14850 607-273-2283 Fax: 606-272-9122

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Plaintiff John R. by his next friend Bonnie H. Shoultz
Plaintiff Bonnie H. Shoultz as next friend of John S. and John R.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Young Legal Services of Central New York Syracuse 472 South Salina Street Suite 300 Syracuse, NY 13202 315-475-3127 Fax: 315-475-2706 Email: syoung@wnylc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arlene S. Kanter (See above for address) TERMINATED: 05/04/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Goldenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frederick M. Stanczak (See above for address) TERMINATED: 07/30/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Betsy Fuller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arlene S. Kanter (See above for address) TERMINATED: 05/04/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Goldenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Patricia R. by her sister Mary Alice B., individually and on behalf of all other similarly situated individuals
Plaintiff Mary Alice B. as sister of Patricia R.

Frederick M. Stanczak (See above for address) TERMINATED: 07/30/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Betsy Fuller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arlene S. Kanter (See above for address) TERMINATED: 05/04/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Goldenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frederick M. Stanczak (See above for address) TERMINATED: 07/30/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Betsy Fuller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arlene S. Kanter (See above for address) TERMINATED: 05/04/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Goldenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frederick M. Stanczak (See above for address) TERMINATED: 07/30/1996 LEAD ATTORNEY

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V. Defendant Mario Cuomo as Governor of the State of New York
Defendant Richard C. Surles as Commissioner of New York State Office of Mental Health

ATTORNEY TO BE NOTICED
Sarah Betsy Fuller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John R. Voninski Office of Court Administration State of New York 5th Judicial District 600 South State Street Syracuse, NY 13202 315-671-2111 Fax: Fax 315-671-1175 TERMINATED: 11/20/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard J. Freshour Office of Attorney General - Albany State of New York The Capitol Albany, NY 12224 518-474-8370 (Main) Fax: 518-473-1572 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John R. Voninski (See above for address) TERMINATED: 11/20/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judith I. Ratner Office of Court Administration State of New York 98 Niver Street Cohoes, NY 12047 518-238-2277(Main) Fax: Fax: 518-238-2777 Email: jratner@courts.state.ny.us TERMINATED: 10/24/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Elin Howe as Commissioner of the New York State Office of Mental Retardation & Development Disabilities
Defendant Richard M. Heath as Director of the Mohawk Valley Psychiatric Center
Defendant Dwight Rhodes as Director of the Binghamton

Richard J. Freshour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John R. Voninski (See above for address) TERMINATED: 11/20/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judith I. Ratner (See above for address) TERMINATED: 10/24/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard J. Freshour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick M. Stanczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John R. Voninski (See above for address) TERMINATED: 11/20/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judith I. Ratner (See above for address) TERMINATED: 10/24/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard J. Freshour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John R. Voninski (See above for address)

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Psychiatric Center
Defendant John R. Scott as Director of Hutchings Psychiatric Center

TERMINATED: 11/20/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judith I. Ratner (See above for address) TERMINATED: 10/24/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard J. Freshour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John R. Voninski (See above for address) TERMINATED: 11/20/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judith I. Ratner (See above for address) TERMINATED: 10/24/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard J. Freshour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/14/1990
03/22/1990 03/22/1990 05/15/1990
05/15/1990

#

Docket Text

1 COMPLAINT filed; FILING FEE $ 120.00 RECEIPT # 01674 ; Service deadline 5/14/90 for John R. Scott, for Dwight Rhodes, for Richard M. Heath, for Elin Howe, for Richard C. Surles, for Mario Cuomo (lmp) (Entered: 08/09/1991)

5 ORDER granting leave to proceed anonymously ( signed by Chief Judge Neal P. McCurn ) (lmp) (Entered: 08/09/1991)

6 ORDER appointing Guardian Ad Litem ( signed by Chief Judge Neal P. McCurn ) (lmp) (Entered: 08/09/1991)

8 ANSWER to Complaint by Richard C. Surles, Richard M. Heath, Dwight Rhodes, John R. Scott (Attorney John R. Voninski), (lmp) (Entered: 08/09/1991)

9 ANSWER to Complaint by Elin Howe (Attorney John R. Voninski),

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05/15/1990 11/30/1990 12/20/1990 03/11/1991 05/07/1991 09/19/1991 11/20/1991
04/01/1992 07/06/1992
07/06/1992 07/14/1992 07/29/1992

(lmp) (Entered: 08/09/1991)
10 ANSWER to Complaint by Mario Cuomo (Attorney John R. Voninski), (lmp) (Entered: 08/09/1991)
17 ANSWER by Mario Cuomo, Richard C. Surles, Elin Howe, Richard M. Heath, Dwight Rhodes, John R. Scott to amended complaint (lmp) (Entered: 08/09/1991)
20 AMENDED COMPLAINT by John S., John R., Bonnie H. Shoultz, Patricia R., Mary Alice B. ,amends [1-1] complaint (lmp) (Entered: 08/09/1991)
22 Rule 16 Scheduling Order Issued. Joining of Parties Deadline 10/19/90 ; Amending of Pleadings Deadline 10/19/90 ; Discovery Deadline 11/1/91 ; Motion Filing Deadline 1/15/92 ( Signed by Chief Judge P. McCurn ) (lmp) (Entered: 08/09/1991)
25 STIPULATION AND ORDER certifying action as a class action ( signed by Chief Judge Neal P. McCurn ) (lmp) (Entered: 08/09/1991)
26 REQUEST by Atty. Kanter and ORDER, reset Answers to second set of Interrogatories deadline to 10/14/91 ( signed by Chief Judge Neal P. McCurn ) (lmp) (Entered: 09/20/1991)
27 Amended Rule 16 Scheduling Order Issued. Preferred Trial Location: Syracuse, NY , Ready for trial by 5/16/92, Joining of Parties Deadline 10/19/90 ; Amending of Pleadings Deadline 10/19/90 ; Discovery 4/1/92 ; Motion Filing Deadline 5/15/92 ( Signed by Chief Judge Neal P. McCurn ) (lmp) (Entered: 11/20/1991)
28 Third amended Rule 16 Scheduling Order Issued. Joining of Parties Deadline 10/19/90 ; Amending of Deadline 10/19/90 ; Discovery Deadline 8/1/92 ; Motion Filing Deadline 9/15/92 ( Signed by Chief Judge Neal P. McCurn ) (bjw) (Entered: 04/06/1992)
29 MOTION by John S., John R., Bonnie H. Shoultz, Patricia R., Mary Alice B. to Compel the Production of Documents , Affidavit of Susan M. Young, Esq., Proposed Order; Hearing set for 10:00 7/28/92 , Response Deadline 7/14/92 , Reply to Response Deadline 7/21/92 (fce) (Entered: 07/07/1992)
30 MEMORANDUM by John S., John R., Bonnie H. Shoultz, Patricia R., Mary Alice B. in support of [29-1] motion to Compel the Production of Documents (fce) (Entered: 07/07/1992)
31 ORDER withdrawing [29-1] motion to Compel the Production of Documents, set Pretrial Conference for 4:30 8/5/92, Albany, NY ( signed by Chief Judge Neal P. McCurn ) (fce) (Entered: 07/14/1992)
35 LETTER from Judge McCurn dtd 7/29/92 scheduling conference for 8/5/92, 4:30 p.m., Albany, NY, re: contested discovery issues; responses filed by 8/3/92 (fce) (Entered: 08/19/1992)

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07/30/1992 07/31/1992 08/05/1992
08/05/1992 09/04/1992
12/23/1992 05/04/1993 06/21/1993

32 LETTER MEMORANDUM to Judge McCurn from Atty Ratner dtd 7/30/92 (fce) (Entered: 07/31/1992)
33 Rule 16 Scheduling Order Issued. Estimated trial length days, Preferred Trial Location: , Ready for trial by , Joining of Parties Deadline 10/19/90 ; Amending of Pleadings Deadline 10/19/90 ; Discovery Deadline 12/31/92 ; Motion Filing Deadline 3/1/93 ( Signed by Chief Judge Neal P. McCurn ) (bac) (Entered: 08/03/1992)
34 Minute entry: PT Conf. - Pltfs' attys. to review medical records first & provide list of patients; Defts' attys. to provide incident reports for said list; if Pltf's attys. can't get information from medical reports, attys. to come back to Court for further relief; Atty. Hallack to advise Court & Pltfs' attys. in writing regarding method of record keeping at 3 institutions & effort required to produce incident reports; Pltfs' attys. to prepare proposed order regarding supervision of PILF students & confidentiality. APP: Susan Young, Frederick Stanczak & Paul Kelly for Pltfs.; Judith Ratner & Nancy Hallack of Ofc. of Mental Health for Defts. STENO: None (Law Clerk - DEM) (lmp) (Entered: 08/06/1992)
Pre-trial conference held (lmp) (Entered: 08/06/1992)
36 ORDER ( signed by Chief Judge Neal P. McCurn, 9/4/92 ): (1) Both cocounsel to plaintiffs shall have access to the names of the class members, their clinical records, incident reports pertaining to class members and to any and all other information or materials which may be obtained throughtout the course of this litigation; (2) Plaintiffs' counsel shall keep confidential all names of class members and the information contained in thier clinical records and incident reports; (3) Law students associated with P.I.L.F. shall act under the supervision of P.I.L.F. supervising attorney and co-counsel L.S.C.N.Y. and shall also keep the above information confidential; (4) P.I.L.F. students shall be accompanied by and act under the supervision of at least one of plaintiff's attorneys while reviewing clinical records at the three defendant facilities (fce) (Entered: 09/10/1992)
37 Amended Rule 16 Scheduling Order Issued. Joining of Parties Deadline 10/19/90; Amending of Deadline 10/19/90; Discovery Deadline 6/15/93; Motion Filing Deadline 8/15/93 (Signed by Chief Judge Neal P. McCurn, 12/23/92 ) (fce) (Entered: 12/29/1992)
38 LETTER from Arlene S. Kanter dtd 4/28/93 to Chambers re: Arlene S. Kanter co-counsel for the plaintiff be removed and that the name of the current PILF supervisor, Elizabeth Goldenberg, be substituted as cocounsel for the plaintiffs. (dmf) (Entered: 05/05/1993)
39 Rule 16 Scheduling Order Issued/Amended Stip.; Extending the Discovery Deadline to 11/15/93 and the Motion Filing Deadline to 1/15/94; if the need arised prior to completion of discovery counsel may request a conference w/ the court; counsel may stipulate to an extension of any deadline set forth in this order and in such case shall submit a signed stipulation for court approval; counsel shall file a Rule 10(K);

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11/23/1993 05/17/1994 11/25/1994 05/30/1996 06/10/1996 07/11/1996 07/17/1996
07/25/1996
07/30/1996

( Signed by Senior Judge Neal P. McCurn 6/18/93) (dmf) Modified on 06/21/1993 (Entered: 06/21/1993)
40 ORDER/AMENDED STIPUALTION, extended Motion Filing deadline to 7/15/94 , and extended Discovery deadline to 5/15/94 ; modification of this Order will only be allowed upon a showing of good cause ( signed by Senior Judge Neal P. McCurn 11/20/93) (dmf) (Entered: 11/23/1993)
41 Rule 16 Scheduling Order Issued. Joining of Parties Deadline 10/19/90 ; Amending of Deadline 10/19/90 ; Discovery Deadline 11/15/94 ; Motion Filing Deadline 1/15/95 (Signed by Senior Judge Neal P. McCurn on 5/13/94) (lmp) (Entered: 05/19/1994)
42 Amended Uniform Pretrial Order; Discovery Deadline 8/15/95 ; Motion Filing Deadline 11/15/95 ; ( Signed by: Senior Judge Neal P. McCurn ) (fce) (Entered: 11/29/1994)
43 LETTER ORDER, scheduling Pretrial Conference for 11:00 a.m. on 6/11/96 in Syracuse, NY, to discuss settlement and/or trial status of this action. (signed by Senior Judge Neal P. McCurn on 5/30/96) (lmp) (Entered: 05/30/1996)
44 Scheduling Notice/letter from AAG Freshour dated 6/4/96: confirming that Pretrial Conference is rescheduled to 1:30 a.m. on 7/11/96 in Syracuse or Utica before Senior Judge McCurn (lmp) (Entered: 06/10/1996)
Pre-trial conference held (lmp) (Entered: 07/17/1996)
45 Minute entry for 7/11/96: PT Conf. - attys. reported that they were in process of drafting final settlement agreement; Atty. Freshour will confer w/clients as to two language proposals submitted by Ptlfs' attys. & report to court & Pltfs' attys. by 8/12/96 as to same; contemporanneous time records, documentation for atty. fees, etc., will be sent to NYS counsel in event of settlement; discussion re Legal Services ban on handling this matter; if case not settled, PILF will become lead counsel. APP: Frederick Stanczak & Susan Young for Legal Services; Janine Hoft & Michael Choi (student) for PILF; Richard Freshour for NYS Court Reporter/ECRO: None (Law Clerk - DEM) (lmp) Modified on 07/17/1996 (Entered: 07/17/1996)
46 MOTION by Mary Alice B., Patricia R., Bonnie H. Shoultz, John R., John S. for Frederick M. Stanczak, Susan M. Young & all counsel employed by Legal Services of Central, New York, Inc., to Withdraw as Attorneys for the Pltf. Class w/attached Affidavit of Frederick M. Stanczak and proposed order. Motion returnable before Judge/Mag. Judge: McCurn (lmp) (Entered: 07/25/1996)
47 ORDER granting [46-1] motion for Frederick M. Stanczak, Susan M. Young & all counsel employed by Legal Services of Central, New York, Inc., to Withdraw as Attorneys for the Pltf. Class effective 7/31/96. (Terminated attorney Frederick M. Stanczak for John S., attorney Frederick M. Stanczak for John R., attorney Frederick M. Stanczak for

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09/12/1996 03/07/1997 03/26/1997
10/02/1998
01/20/1999 02/08/1999 02/08/1999 03/10/1999 03/18/1999

Bonnie H. Shoultz, attorney Frederick M. Stanczak for Patricia R., attorney Frederick M. Stanczak for Mary Alice B. (signed by Senior Judge Neal P. McCurn on 7/30/96) (lmp) (Entered: 07/31/1996)
48 LETTER ORDER, directing counsel to advise court in writing as to Status of this action by 9/22/96 (signed by Senior Judge Neal P. McCurn on 9/12/96) (lmp) (Entered: 09/12/1996)
49 Minute entry: Tel. Conf. - when conf. call put thru, only AAG Freshour for Defts. appeared; Pltf's counsel unable to appear; conf. will be rescheduled for next week. APP: Richard Freshour for Defts. Court Reporter/ECRO: None (Law Clerk - CLR) (lmp) (Entered: 03/07/1997)
50 Minute entry for Tel. Conf. on 3/21/97: Still working on stipulation of settlement & changes proposed by Defts.; parties believe agreement is possible as to language & time frame; Status Report deadline set to 4/10/97 for parties to report to court ; once language is agreed upon, it will take some time for final approval by NYS; it was agreed that issue of attys. fees be held in abeyance until merits of case or settlement is reached. APP: Frederick Stanczyk for Pltfs.; Richard Freshour for NYS Court Reporter/ECRO: None (Law Clerk - CLR) (lmp) (Entered: 03/26/1997)
51 Minute entry: Tel. Conf. - Court discussed proposed notice to class members of tentative settlement agreement; Court ordered Atty. Stanczyk to submit amended proposed notice, striking last paragraph on page 4 & adding, "This notice has been approved as to form and content," & adding signature & date lines for Court; AAG Freshour to send to Atty. Stranczyk orig. stipulation & order for signature, which will then be submitted to Court; Court set Evidentiary Hearing regarding fairness & adequacy of proposed settlement for 2:00 p.m. on 12/28/98 in Syracuse, NY . APP: Frederick Stanczyk for Pltfs.; Richard Freshour for Defts.; Court Reporter/ECRO: None (Law Clerk - CLR) (lmp) (Entered: 10/05/1998)
52 LETTER ORDER, set Dismissal Calendar Call for 2:00 pm on 2/5/99 in Syracuse, NY at court's chambers. (signed by Senior Judge Neal P. McCurn on 1/19/99) (lmp) (Entered: 01/20/1999)
53 NOTICE to Class of Hearing: set Hearing on proposed Settlement of Class Action for 2:00 p.m. on 3/26/99 in Syracuse, NY, before Senior Judge McCurn. (lmp) (Entered: 02/08/1999)
54 STIPULATION and ORDER as to terms of settlement of class action. (signed by Senior Judge Neal P. McCurn on 2/5/99) (lmp) (Entered: 02/08/1999)
55 REQUEST by Atty. Young for Pltfs. dtd 3/8/99 and ORDER that time of filing motions for attorneys fees shall not begin to run until after entry of final order/judgment subsequent to 3/26/99 hearing. (signed by Senior Judge Neal P. McCurn on 3/9/99) (lmp) (Entered: 03/10/1999)
56 NOTICE of attorney appearance for Mary Alice B., Patricia R., Bonnie

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03/26/1999
04/12/1999 04/19/1999 04/19/1999 05/13/1999 05/27/1999
05/27/1999 05/27/1999 05/28/1999 05/28/1999
05/28/1999

H. Shoultz, John R., John S. by Sarah Betsy Fuller (lmp) (Entered: 03/18/1999)
57 Minute entry: Hearing on Proposed Settlement of Class Action - no one appears to object; Judge McCurn approves settlement & directs Atty. Stancyzk to submit proposed order within 10 days & transcript to be ordered at Defts' expense. APP: Frederick Stanczyk & Sarah Betsy Fuller for Pltfs.; Richard Freshour for Defts.; Court Reporter/ECRO: K. Crewell (LC-CLR) (lmp) (Entered: 03/26/1999)
58 TRANSCRIPT of Hearing on Proposed Settlement of Class Action filed for dates of 3/26/99 before Judge Neal P. McCurn, Sr. Court Reporter: Kenneth H. Crewell, Jr. (jlm) (Entered: 04/12/1999)
59 ORDER, approving the Stipulation for Settlement of Class Action , etc. (signed by Senior Judge Neal P. McCurn on 4/15/99) (lmp) (Entered: 04/19/1999)
**Case closed (lmp) (Entered: 04/19/1999)
60 Scheduling Notice/letter from Atty. Young for Pltfs.: extending Motion for Atty's Fees Filing deadline to 5/28/99 w/approval of SJ McCurn. (lmp) (Entered: 05/13/1999)
61 MOTION by Mary Alice B., Patricia R., Bonnie H. Shoultz, John R., John S. for Attorney Fees for services of Sarah Betsy Fuller, Esq. w/certsvc., Hearing set for 9:30 am on 7/13/99 in Syracuse, NY, Response Deadline 6/29/99; Motion returnable before Judge/Mag. Judge: McCurn (lmp) Modified on 05/28/1999 (Entered: 05/27/1999)
62 MEMORANDUM by Mary Alice B., Patricia R., Bonnie H. Shoultz, John R., John S. in support of [61-1] motion for Attorney Fees (lmp) (Entered: 05/27/1999)
63 AFFIDAVIT by Sara Betsy Fuller, Esq., for Pltfs. Mary Alice B., Patricia R., Bonnie H. Shoultz, John R., John S. Re: [61-1] motion for Attorney Fees w/attached Exhibits (lmp) (Entered: 05/27/1999)
64 NOTICE of attorney appearance for Mary Alice B., Patricia R., Bonnie H. Shoultz, John R., John S. by Frederick M. Stanczak, Esq., w/change of address. (lmp) (Entered: 05/28/1999)
65 MOTION by Mary Alice B., Patricia R., Bonnie H. Shoultz, John R., John S. for Attorney Fees for services of Frederick M. Stanczak, Esq. w/attached proposed order, Affidavit of Frederick M. Stanczak & exhibit, Hearing set for 9:30 am on 7/13/99 in Syracuse, Response Deadline 6/29/99; Motion returnable before Judge/Mag. Judge: McCurn (lmp) (Entered: 05/28/1999)
66 MOTION by Mary Alice B., Patricia R., Bonnie H. Shoultz, John R., John S. for Attorney Fees for services of Susan M. Young, Esq. , Hearing set for 9:30 am on 7/13/99 in Syracuse, Response Deadline 6/29/99; Motion returnable before Judge/Mag. Judge: McCurn (lmp) (Entered: 05/28/1999)

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05/28/1999 05/28/1999 06/02/1999
06/29/1999 06/29/1999 07/13/1999
08/02/1999
08/02/1999

67 MEMORANDUM by Mary Alice B., Patricia R., Bonnie H. Shoultz, John R., John S. in support of [66-1] motion for Attorney Fees for services of Susan M. Young, Esq. (lmp) (Entered: 05/28/1999)
68 AFFIDAVIT by Susan M. Young, Esq., for Pltfs. in support of [66-1] motion for Attorney Fees for services of Susan M. Young, Esq. (lmp) (Entered: 05/28/1999)
69 LETTER ORDER, oral argument/Motion Hearing set for 9:30 AM on 7/13/99 in Syracuse re: [66-1] motion for Attorney Fees for services of Susan M. Young, Esq., [65-1] motion for Attorney Fees for services of Frederick M. Stanczak, Esq., [61-1] motion for Attorney for services of Sarah Betsy Fuller, Esq. ; if there is no opposition, court will take matter on submit. (signed by Judge Neal P. McCurn on 6/1/99) (lmp) (Entered: 06/02/1999)
70 RESPONSE by John R. Scott, Dwight Rhodes, Richard M. Heath, Elin Howe, Richard C. Surles, Mario Cuomo in opposition to [66-1] motion for Attorney Fees for services of Susan M. Young, Esq., [65-1] motion for Attorney Fees for services of Frederick M. Stanczak, Esq. (fce) (Entered: 06/30/1999)
71 MEMORANDUM by John R. Scott, Dwight Rhodes, Richard M. Heath, Elin Howe, Richard C. Surles, Mario Cuomo in opposition to [66-1] motion for Attorney Fees for services of Susan M. Young, Esq., [65-1] motion for Attorney Fees for services of Frederick M. Stanczak, Esq. (fce) (Entered: 06/30/1999)
72 Minute entry: [66-1] motion for Attorney Fees for services of Susan M. Young, Esq. under advisement, [65-1] motion for Attorney Fees for services of Frederick M. Stanczak, Esq. under advisement, [61-1] motion for Attorney Fees for services of Sarah Betsy Fuller, Esq. under advisement. APP: Sarah Betsey Fuller, Susan M. Young & Paul Kelly for Pltfs.; Richard Freshour for Defts.; Court Reporter: Kim Liberatore (LCDPW) (lmp) (Entered: 07/13/1999)
73 MEMORANDUM-DECISION AND ORDER granting [66-1] motion for Attorney Fees for services of Susan M. Young, Esq., granting [65-1] motion Attorney Fees for services of Frederick M. Stanczak, Esq., granting [61-1] motion for Attorney Fees for services of Sarah Betsy Fuller, Esq.; Pltfs' attys. are entitled to atty's fees & costs of $179,290.68, apportion as follows: $56,782.95 in fees & costs for PILF, $118,872.73 in fees & costs for LSCNY & $3,635 in fees for Stanczak. (signed by Senior Judge Neal P. McCurn on 7/29/99) Date Entered: 8/2/99 (lmp) (Entered: 08/02/1999)
74 JUDGMENT for Mary Alice B., Patricia R., Bonnie H. Shoultz, John R., John S. against John R. Scott, Dwight Rhodes, Richard M. Heath, Elin Howe, Richard C. Surles, Mario Cuomo for atty. fees & costs of $179,290.58, etc. Date Served: 8/2/99 Date Entered: 8/2/99 (lmp) (Entered: 08/02/1999)

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