Damages Only $1, But Lawyers Prevail and Get $34,772

, New York Law Journal


The $1 aside, however, Suddaby said the ADF sought and gained a change in SUNY Albany's policy on speakers with a religiously based message.

"Plaintiff in this case prompted Defendants to adopt a new policy for SUNY Albany," the judge concluded.

Suddaby dismissed arguments by the college that policy changes had been in the works since late 2009, declaring that Deferio's suit "prompted the adoption of a new policy."

The new policy eliminated a fee for third parties wishing to use the public space on the SUNY campus, only requiring users to fill out forms informing campus officials of their intent to use the spaces.

Suddaby also rejected the state's argument that since a significant portion of the alliance lawyers' time was taken up in their work on the preliminary injunction, they shouldn't be allowed to bill their adversaries for fees and costs.

The state, through Assistant Attorney General Adrienne Kerwin, argued that the Southern District's ruling in a 2001 case, Espada v. Rosado, 2001 WL 1020549, blocks recovery for attorney fees by the plaintiff for time spent on an unsuccessful preliminary injunction argued in a case where the plaintiff ultimately prevails.

Suddaby, however, said 42 U.S.C. §1988 is clear that a party is entitled to time spent on an unsuccessful motion as long as that motion was related to the case's successful outcome and was not frivolous.

In Deferio, Suddaby said, the motion for the preliminary injunction only failed because it was rendered moot by the state's declaration that it had just changed the policy that prompted the motion in the first place.

"Plaintiff's victorious constitutional claims and his unsuccessful motion for a preliminary injunction arose out of a 'common core of facts:' Defendants' campus policy and actions violating Plaintiff's First Amendment rights," the judge wrote in his Jan. 27 ruling. "As a result, the Court finds it appropriate to award attorneys' fees relating to his unsuccessful motion for preliminary injunction."

Suddaby revised downward the fees request by the alliance attorneys in other regards, however.

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