MacKay v Yoon

MacKay v Yoon 2012 NY Slip Op 01187 Decided on February 16, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 16, 2012
Friedman, J.P., Sweeny, Renwick, DeGrasse, Román, JJ. 6829-
6830 101934/08

[*1]Carlton MacKay, Plaintiff-Appellant,

v

Edward C. Yoon, et al., Defendants-Respondents.




Bamundo, Zwal & Schermerhorn, LLP, New York (Michael C.
Zwal of counsel), for appellant.

Order, Supreme Court, New York County (Paul Wooten, J.), entered May 20, 2010, which, to the extent appealed from, provided for payments from a qualified settlement fund in the amount of $9,470.77 for disbursements to plaintiff's counsel, $22,500 in compensation to the settlement fund's administrator, $6,110 in compensation to counsel for the settlement fund, $0 to Plaintiff's Solutions, and directed the administrator to purchase an annuity for the benefit of plaintiff in the amount of $1,050,000 to be paid in monthly installments of $6,999.12 beginning July 1, 2010 for life with 15 years certain, unanimously modified, on the law and the facts, to the extent of increasing the award for disbursements to plaintiff's counsel to $17,975.77, vacating the award of $22,500 to the settlement fund administrator, reducing the award to the settlement fund's counsel to $3,000, awarding Plaintiff's Solutions $4,500, and restating the terms of the structured settlement, nunc pro tunc, to reflect an actual monthly annuity payment of $6,680.90, the matter remanded to a different justice for a determination of the fund administrator's fee, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered June 27, 2011, which, to the extent appealed from as limited by the brief, denied plaintiff's motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable paper.

By Amended Order, dated March 16, 2010, after plaintiff settled this personal injury action for $2,250,000, Supreme Court approved plaintiff's application to establish a qualified settlement fund, into which the settlement proceeds were to be deposited, and appointed an administrator as well as legal counsel. In or about April 2010, following resolution of the Medicare and Medicaid liens, plaintiff and his counsel submitted a proposed order providing for distribution of the settlement proceeds, previously approved by the fund's administrator and counsel. At an April 28, 2010 conference before the court, plaintiff confirmed his understanding and approval of the requested disbursements.

The motion court abused its discretion in granting a $22,500 award to the settlement fund's administrator because the amount is arbitrary and not supported by the record. No evidence was submitted to permit a valuation of the administrator's services, such as an hourly rate and time expended or bill for services rendered or those expected to be rendered (see Flemming v Barnwell Nursing Home and Health Facilities, Inc., 56 AD3d 162, 167 [2008], affd 15 NY3d 375 [2010]). The award to the fund's counsel should be reduced as indicated to reflect her actual charges as demonstrated in the record and as consented to by Ms. Meyers. [*2]

The disbursements made by plaintiff's counsel were agreed to by plaintiff and were provided for in the retainer agreement pursuant to which plaintiff permitted counsel to incur and deduct from the gross recovery expenses for "services chargeable to the claim or prosecution of the action," with liens chargeable to plaintiff. Thus, the disbursements made by counsel on plaintiff's behalf in connection with this litigation, including the amount paid to Plaintiff's Solutions, a company retained by counsel to aid in the resolution of the outstanding liens resulting from plaintiff's extensive medical care, were properly incurred and payable from the settlement fund pursuant to the retainer agreement. Notably, plaintiff never objected to the disbursements, and to the contrary, submitted an affidavit in which he asserted that he understood and accepted the payments set forth in the proposed order.

To the extent the motion court erred in setting the monthly annuity payment, we correct the amount to reflect the agreed upon
payment of $6,680.90.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 16, 2012

CLERK