Melendez v Kim
Annotate this CaseDecided on February 3, 2005
Supreme Court, New York County
ALFREDO MELENDEZ and MARIA MELENDEZ, Plaintiffs
against
GEUN EUN B. KIM, M.D., and NEW YORK DOWNTOWN HOSPITAL d/b/a NEW YORK INFIRMARY BEEKMAN DOWNTOWN HOSPITAL, Defendants
412204/95
Stanley L. Sklar, J.
In this fee dispute Robert Wolf's receiver moves to affirm the report of the Special Referee awarding him 60% of the fee, and Meiselman and Gordon (M&G) cross moves to disaffirm the report and award 100% of the fee to it. Their applications are resolved as indicated herein. I accept the findings of fact made by the Special Referee in his lengthy and well considered report. He had the advantage of seeing the witnesses and was able to evaluate their demeanor testimony as well as the words they spoke. In addition, no transcript of the testimony has been ordered, so that the transcript is unavailable for review, and both Mr. Wolf's receiver and M&G seem content to ground their arguments on the Referee's extensive report. Reference is made to the report for a full statement of the facts.
Robert Wolf was retained by plaintiffs on about September 18, 1990. However, he did not have service of a summons and complaint effected until late February, 1992. By June 1992, the defendants answered and later demanded a bill of particulars which Wolf unaccountably did not serve until August 16, 1994. That bill claimed punitive damages.
In October 1994 there was motion practice to compel discovery and at least one defendant moved to dismiss for failure to prosecute. Wolf cross moved for an order authorizing the service of a late Notice of Medical Malpractice Action. Justice Silver denied the motion, finding that the case had not been abandoned and that Wolf had set forth documentation that because of medical conditions he could not comply timely with discovery demands. The Referee's report is unclear as to whether Wolf supplied an affidavit of merit or simply indicated difficulty obtaining one. Justice Silver struck the case from the calendar and directed compliance with discovery demands. Manifestly, it was Wolf's lack of diligence, purportedly caused by medical conditions, that exposed him to a motion to dismiss for failure to prosecute.
In December 1994 defendants moved to transfer venue to New York County. Wolf opposed the motion since, at the time he commenced the action, the plaintiffs were residents of Bronx County. Justice Silver directed a change of venue because the action was transitory and New York County was the most convenient forum. Wolf's application for reargument or renewal was denied in August 1995. Wolf appealed but his appeal was dismissed [*2]in July 1997.
Before then defendant Kim moved to strike the claim for punitive damages in the bill of particulars. In view of the transfer of venue, Justice Silver denied the application without prejudice. In July 1996 Justice Moskowitz in New York County granted defendants' motion to strike the punitive damages claim as not included in the complaint and granted plaintiffs leave to amend the complaint.
There were additional disputes about discovery. Wolf had retained trial counsel. Justice Moskowitz recused herself and the action was transferred to me. I granted trial counsel's motion to be relieved because that firm could not work with Wolf. In October 2000 I granted defendants' motion to strike the case from the trial calendar in view of the amended bill of particulars which newly claimed "stress disorder" and a "heart condition" caused by the alleged malpractice.
In March 2001 Wolf entered into an agreement with M&G pursuant to which Wolf would be paid 50% of any fee if settled before trial, 40% if settled within 24 hours after jury selection and one third if the case went to verdict. In June 2001 Wolf was suspended from practice.
At oral argument on the instant application, it became clear that Wolf also attended an ebt of one or both plaintiffs and at least one session of an ebt of a defendant, evidently defendant Kim. Wolf testified that he had spoken with doctors and prepared for the ebts. He claimed to have spent a total of 771 hours on this case prior to turning over the file to M&G. The Referee did not find that claim credible. Wolf said that he delivered boxes of material to M&G, but that certain boxes broke and to expedite the transfer he put the contents of those into plastic bags. He also included his trial memorandum. A specific finding as to when Wolf knew of the possibility of his suspension was not made by the Referee.
M&G argues that most of the motion practice in this case was wasteful, pointing to the opposition to the motion to change venue. His opposition was arguably justifiable. Venue was placed in Bronx County because of the residence of the plaintiffs at the time the action was instituted. The motion accordingly was addressed to discretion, evidently based on convenience of witnesses. Whether to seek reargument or renewal and to appeal is a matter on which reasonable attorneys could disagree. I also take judicial notice of the fact that many attorneys prefer to place venue in Bronx County because of their perception that the jurors there are plaintiff oriented.
M&G further urges that opposition to the application to strike punitive damages was futile. I agree. My years of experience in my medical malpractice part establishes that the top practitioners in the field almost never seek punitive damages; the novices frequently do. As is almost always true, seeking punitive damages is a total waste of time and underscores Wolf's lack of experience in the field.
M&G also claims that review of the "numerous deposition transcripts revealed duplication of questions by Wolf" (Ref report, 16), which was due to "contentious relationship with defense counsel".
M&G maintains that Wolf spent too much time on medical research, that Wolf had little medical malpractice experience, and that the case was "simpler than Wolf made it out to be" (Ref 16). I concur. Wolf obviously was not an experienced medical malpractice litigator, [*3]especially by comparison with M&G. M&G also urges, I believe quite correctly, that Wolf overvalued the case as being one that should not settle for less than 7 million dollars.
M&G attended three conferences. Then, on the date scheduled for trial, December 10, 2001, the case was settled for $ 600,000, which it urges was a reasonable sum. I agree.
The Referee found that Wolf's work was not deficient in the sense that it did not cause a settlement at a lower figure than could otherwise have been obtained. (Referee's report, 17-18)
At oral argument it became clear that Wolf was not even able to substantiate his disbursements, and the request for reimbursement of disbursements was accordingly withdrawn.
I am constrained to conclude that the learned Special Referee overweighted the amount of time spent on the case by Wolf and did not give enough weight to the skill required, the complexity of the matter, the attorney's experience, ability and reputation, the client's benefit from the services, and the fee charged by other attorneys for similar services. In the matter of Karp, 145 AD2d 208; Rosenzweig v. Gomez, 250 AD2d 664; Jordan v. Freeman, 40 AD2d 656; Potts v. Hines, 144 AD2d 189.
As already noted, Wolf took one and one half years after being retained to have a summons and complaint served, belatedly served a bill of particulars and evidently attended about two days of EBTs. When he finally turned the matter over to M&G, he gave them a large mass of disorganized papers in plastic bags. Their disorganization does not speak well of Wolf's efforts. In addition, he opposed a motion to change venue and took an appeal from the granting of that motion. He also successfully resisted an application to dismiss for failure to prosecute. Although these efforts kept the plaintiff's action alive, he should have moved his action along so as not to have any vulnerability to an application to dismiss for failure to prosecute. I have presided over a medical malpractice part for many years, and such applications are now infrequent. The case was struck from the calendar twice, once by Justice Silver and once by me. Wolf made several appearances before me. The value of those appearances was nil because nothing was accomplished due to Mr. Wolf's extraordinarily combative personality, likely already hardened by his illness. He did not focus his case, get a reliable expert on board and bring the case to conclusion. Rather, I believe that his case and one other (which had significant delays due to death) were the only cases in my entire medical malpractice inventory dating as far back as 1995. I had no other case in which the action was originally commenced in 1992, much less one in which counsel was retained in 1990.
Wolf was incapable of properly valuing the case. He had the firm belief that the case was worth at least seven million dollars and told the client not to accept less. This dramatic overvaluing of the case required M&G to spend time to explain to the client the realities of the value of the case.
Once M&G had the materials from Wolf it had to spend time organizing them. It then analyzed the case and with knowledge and experience in medical malpractice cases readily secured the services of a competent expert. Although Wolf may have consulted with at least one expert, we have no idea of the appropriateness of the area of medicine in which that expert or those experts practiced. In any event, those consultations clearly produced nothing of value since M&G had to consult a new expert. With that expert's help they were able to appropriately value [*4]the case and, as noted above, had to confer with the plaintiff on the otherwise unnecessary task of helping the plaintiff understand that the case was in no way worth anything close to the seven million dollar minimum irrationally posited by Wolf. Finally, M&G's devotion to the matter coupled with the intensity of its labors and its experience and skill resulted in the settlement of the action for $ 600,00, a fine result.
One may recall that M&G willing entered into an agreement with Wolf pursuant to which Wolf would receive 50% of counsel fees and M&G would receive 50% on a pre-trial settlement. However, M&G's position with respect to a fee for Wolf has changed dramatically and has become extreme. M&G appropriately asserted that the 50-50 agreement is invalid since Wolf is suspended from practice and that fees must be determined on a quantum merit basis, utilizing the six elements mentioned in matter of Karp, (supra) and other cases. However, M&G then concentrates on one element only, namely, the benefit that the services conferred on the client. They urge that on that basis Wolf is entitled to no fee.
"It does not appear that a court could fairly conclude that Wolf benefitted the client. He dragged out the case for eleven years; engaged in pointless motion practice; and absent M&G would have allowed the case to be dismissed". "Talking Points" Memo of Law, Nov 16, 2004, p 3. M&G is clearly correct as to the less than snail's pace with which Wolf proceeded and that some of his efforts, including as to punitive damages, were futile. Nonetheless, Wolf did perform some services of value to the client. However slowly and perhaps inartfully, he started an action within the statute of limitations, served a bill of particulars, handled ebts and kept placing the case on the calendar. He successfully resisted a motion to dismiss; but he wouldn't have been subject to a dismissal application if he had moved his case.
It is urged that if M&G (or another knowledgeable firm) had not taken over, the case would have proceeded to trial because he had a pie in the sky notion of the value of the case, did not understand the medicine and would have lost the trial. This argument is supported by the affirmation of defense counsel Norman Weitzman, exhibit N to submission to Referee, included as Exhibit I in Volume II of Exhibits in Opposition. He asserts that Wolf did not understand the medicine and he would not have settled with Wolf but gone to trial because Wolf's theory of the case was a loser. Even if that were correct, the fact is that he did arrange for an experienced firm that did understand the medicine to take over the case.
M&G asserts that I cannot follow the First Department decision in Decolator, Cohen & DePrisco, LLP v. Lysaght, Lysaght & Kramer, P.C., [304 AD2d 86 (1st Dept, 2003)] because that decision is wrong, violates stare decisis, etc. I disagree. So long as the services rendered by each counsel are valued in accordance with the quantum merit standards set forth in matter of Karp, (supra) and the other cases cited above, the valuation may be expressed in percentages. As noted above, I conclude that the learned Special Referee erred in overvaluing the time spent. Although he did not credit Wolf's extraordinary estimate of the time he spent on the case, it is clear that Wolf spent far more time on the case than M&G. Under that standard alone, the Referee's determination that Wolf is entitled to 60% of the fee might seem appropriate. However, much of the time Wolf spent on the case was of no value. He did not prosecute this case expeditiously or knowledgeably. All of his appearances before me were of no value. Fortunately for plaintiffs, he realized that he was not capable of trying this action. He retained [*5]another firm as trial counsel, but on their application I relieved them. He was ultimately wise enough to secure the services of knowledgeable counsel who proceeded in short order to achieve a good settlement.
Under all the circumstances and giving proper weight to all of the factors listed in Karp, (supra) I conclude that Wolf is entitled to 40% of the fee and M&G is entitled to 60%.
Settle order.
Dated:
J.S.C.
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