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Trinity Episcopal Sch. Corp. v. Romney

Citation: 7 ELR 20189
No. No. 71 CIV 4315, 422 F. Supp. 179/9 ERC 2037/(S.D.N.Y., 10/14/1976) Attorneys fees denied

The court denies plaintiffs' motions for costs and attorney fees in a long-standing case concerning a public housing project. In a prior action, this court rejected plaintiffs' claims on the merits. On appeal, the Second Circuit affirmed, 5 ELR 20497, except that it concluded that the Department of Housing and Urban Development (HUD) had violated NEPA by failing to consider all possible alternatives, and remanded to this court "with costs to abide the event." The court on remand rejects plaintiffs' motion for costs because the final outcome of the case has not been decided. Plaintiffs also moved for attorney fees based on the two exceptions to the American Rule recognized in Alyeska Pipeline Co. v. Wilderness Soc'y, 5 ELR 20286 (U.S. 1975). Plaintiffs do not meet the requirements of the "common benefit" exception because they have not reasonably identified an ascertainable class who benefited from this litigation. Also, recovery of fees from defendants in this action would not apportion the cost among those who benefit from the lawsuit. Secondly, plaintiffs' reliance on the "bad faith" exception is unjustified since their claim of bad faith on the part of the City of New York is without merit. Finally, plaintiffs may not recover fees from the federal defendants because no statute provides for such recovery.

Counsel for Plaintiffs
Eugene J. Morris
Demov, Morris, Levin & Shein
40 W. 57th St., New York NY 10019
(212) 757-5050

Counsel for Defendants
Robert B. Fiske, Jr., U.S. Attorney; Peter C. Salerno, Ass't U.S. Attorney
One St. Andrews Plaza, New York NY 10007
(212) 791-1963

W. Bernard Richland, Corp. Counsel; Hadley W. Gold, Ass't Corp. Counsel
Office of Corporation Counsel
Municipal Bldg., New York NY 10005
(212) 566-3929

Marttie L. Thompson
Strycker's Bay Neighborhood Council, Inc., Community Action for Legal Services, Inc.
169 W. 89th St., New York NY 10024
(212) 874-7272

John de P. Douw
33 S. Broadway, New York NY 10006
(212) 222-3163