Did the defendants wait too long to seek attorney fees as prevailing parties?  If they did wait too long, it could be malpractice.  In Smith, Gambrell & Russell, LLP v Telecommunication Sys., Inc.  2017 NY Slip Op 30951(U)  May 5, 2017  Supreme Court, New York County  Docket Number: 653476/2016  Judge: Anil C. Singh sits (in effect) as an Appellate Court and renders judgment on whether the attorneys waited too long.

“Plaintiff law firm Smith, Gambrell & Russell, LLP (“plaintiff’ or “SGR”) moves pursuant to CPLR 321 l(a)(l) and (7) to dismiss defendant Telecommunications Systems, Inc.’ s (“defendant” or “TCS”) counterclaim alleging legal malpractice, ·· contending that it did not miss a statutory 14-day deadline under Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure for filing a motion for attorneys’ fees as the deadline was tolled while post-judgment motions were pending in the underlying federal matter. Defendant opposes the motion. ”

“TCS contends that SGR sought fees based on a sanctions argument not because of difficulties in establishing TCS as the “prevailing party” – the judgment expressly held that TCS was the prevailing party- but because SGR had missed the deadline for an attorneys’ fee application set by Rule 54(d)(2)(B). Neither TCS nor SGR states whether the Court ever decided the motion for sanctions. SGR points out that, after the motion for sanctions was filed, Cassidian and TCS settled their dispute, and all pending actions and appeals were withdrawn by the parties on December 18, 2015 (SGR’s Memorandum of Law dated Nov. 11, 2016, p. 7). The counterclaim asserts a single cause of action for legal malpractice alleging that by failing to file a timely motion for attorneys’ fees, SGR breached its duty of care (Counterclaim, p. 20, para. 96). TCS seeks damages in the sum of $3.4 million. ”

“There are numerous federal cases holding that a motion for attorneys’ fees is timely under Rule 54(d)(2)(B) when filed within 14 days after the entry of judgment, or within 14 days of the resolution of post-judgment motions. For example, in Sorenson v. Wolfson, 170 F.Supp.3d 622 (S.D.N.Y. 2016), the Court held that a postjudgment motion revives the time to seek legal fees regardless of whether or not an initial application was made during the 14-day period following entry of the original judgment (id. at 628). Other federal district and circuit courts have reached the same conclusion (see, for example, SAS Inst .. Inc. v. World Programming Ltd., 2016 WL 3920203, at *3 (E.D.N.C. July 15, 2016) (“After disposition of defendant’s [post~judgment motions], the filing period for attorney’s fees began anew.”); Waltrous v. Bomer, 995 F.Supp.2d 84, 88 (D. Conn. 2014) (“[A] party’s motion for attorney’s fees is timely, unless filed outside the fourteen-day window following the court’s last ruling on any pending [post-judgment] motions.”); Drumgold v. Callahan, 806 F.Supp.2d428, 435 (D. Mass. 2011) (“The overarching rule is that a motion for attorneys’ fees ‘is timely filed if filed no later than 14 days after the resolution of [post-trial motions].”‘) (citing Weyant v. Okst, 198 F .3d 311, 315 (2d Cir. 1999); Chirco v. Charter Oak Homes. Inc., 2008 WL 1743343, at *8 (E.D. Mich. Apr. 11, 2008) (“Where a post-judgment motion has been filed, the time limit shall begin to run upon the denial of the motion.”); Bio-Med. Applications of Tex., Inc. v. BAP-FMC San Antonio, Ltd., 2006 WL 2728915, at *1 (W.D. Tex. July 7, 2006) (“Plaintiffs motion for attorney’s fees was filed within fourteen days of the order disposing of plaintiffs [post-judgment motion]  The motion is therefore timely.”) It is noteworthy that in four of the above cases, the prevailing party filed a motion for attorneys’ fees after the initial 14-day deadline expired. Likewise, we note that TCS has not cited a case setting forth an inflexible – and arguably irrational – holding that a motion for attorneys’ fees should have been filed within 14 days of the initial entry of judgment even where post-judgment motions were filed .”

“The documentary evidence shows unambiguously that post-judgment motions were filed in the Cassidian matter; the Court issued its final ruling on the postjudgment motions on April 20, 2015; and on May 4, 2015, SGR made a timely motion to recover legal fees as a sanction (Rosenthal Aff., exhibits C, D, E, F). The Court finds that the documentary evidence utterly refutes the allegation that SGR failed to make a timely motion for attorneys’ fees. The counterclaim fails to state a cause of action for malpractice predicated on the missed deadline. Accordingly, it is ORDERED that the motion is granted, and the counterclaim is dismissed pursuant to CPLR 321 l(a)(l) and (7) without leave to replead. ”