Matter of De Andino

[*1] Matter of De Andino 2005 NY Slip Op 50756(U) Decided on May 23, 2005 Surrogate's Court, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2005
Surrogate's Court, Bronx County

IN THE Matter of ESTATE OF CARLOS A. MARTINEZ DE ANDINO also known as CARLOS MARTINEZ, Deceased



277-M/04



Marshall E. Bloomfield, Esq. (Michael P. Bloomfield, Esq., of Counsel) pro se, movant

Jasne, Florio & Florio, LLP (Hugh G. Jasne, Esq., of Counsel) for Daniel F. Florio, Jr., objectant

Lee L. Holzman, J.

The primary issue in this motion is whether the objectant, the

attorney who referred the plaintiff in a negligence action to the movant, is precluded from sharing in the legal fee due to his failure to file a retainer statement with the Office of Court Administration. The movant concedes that the objectant referred the plaintiff to him and that the objectant performed legal services in the negligence action for which he received modest compensation. However, the movant alleges that the objectant was an independent contractor who is required to file a separate retainer agreement. The objectant alleges that he was not required to file his own retainer statement because he was associated with the movant.

In this application to receive and judicially account for the settlement proceeds of a personal injury cause of action, an interim decree entered on December 3, 2004 provided for a partial payment of counsel fees to the movant and the objectant and directed that the portion of the legal fee which then appeared to be claimed by both attorneys be held in escrow pending the resolution of the objections. The movant, who had filed the retainer statement with the Office of Court Administration pursuant to 22 NYCRR 603.7, moves for an order, inter alia, striking the objections, granting summary judgment in the movant's favor and directing the objectant to pay the movant the sum of $25,000 (the amount that the process that was served upon the objectant stated should be paid to him in full satisfaction of his claim for legal services) that was previously paid to the objectant pursuant to the interim decree. [*2]

The movant contends that he was retained by the administratrix on December 5, 1996, and that he filed a retainer statement dated January 16, 1997, which did not indicate that any other attorney was "engaged" in the litigation. However, the objectant was named on the statement as the attorney who had referred the matter to him. The movant further contends that he paid the objectant as an independent contractor for any services rendered and that the objectant was neither his employee nor an associate of his firm. In support of this contention, the movant has submitted an IRS Form 1099-MISC for three years (1996, 1999 and 2000), various checks from his "Attorney Operating Account" dating from 1997 and various "periodic statement(s) of account" on the objectant's letterhead for services performed during 2000. The movant also submitted a detailed "Time Slip Report" listing the objectant's participation in this matter. The movant denies that he agreed to share the fee with the objectant and asserts that any "bonus" that he might have paid to the objectant for services rendered in other matters was a gesture of appreciation and not a product of any agreement between them.

The objectant alleges that he was an associate of the movant's firm at the time the movant was retained by the administratrix and that the objectant acted for the firm both in referring the case to the movant and in his participation in the prosecution of the litigation, as well as a related Workers' Compensation proceeding. The objectant contends that as an associate in the movant's firm, the parties agreed that he was to receive a modest hourly rate for the services that he rendered plus an amount equal to one-third to one-half of the legal fee that the movant received from matters referred to him by the objectant. The percentage to be paid to the objectant was to be based upon the services that he rendered. The objectant contends that soon after his admission to the Bar of the State of New York in 1996, he became associated with the movant's firm and that the movant does not deny that the objectant referred this matter to him or that he worked on the litigation. The objectant further contends that, since he was an associate of the movant's firm, he is entitled to share in the fee based upon their oral agreement and their prior course of conduct, i.e., the receipt of a bonus, and that there is no prohibition to any division of fees among attorneys who are associates (Gold v. Katz, 193 AD2d 566 [1993]).

Additionally, the objectant argues that he should not be required to return the sum of $25,000 previously paid pursuant to the interim decree on several grounds: 1) the statement filed by the movant indicates that the objectant referred the client to him; 2) the citation in the application included, as part of the relief, that $25,000 should be paid to the objectant out of the proceeds of the settlement for "reasonable" counsel fees and, upon said payment, the disallowance of any further claim by the objectant; and 3) that the interim decree cannot be collaterally attacked in this motion because the movant failed to either appeal or seek reargument within 30 days after the decree had been served with notice of entry. Although the movant does not offer any explanation as to the contradictory position taken in the citation, he does state that he had to list the objectant in the closing statement to be in compliance with the interim decree and that his time to appeal has not commenced since there is no final decree to appeal from as yet.

Summary judgment cannot be granted unless it clearly appears that no material triable issues of fact exist (Phillips v. Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prime facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320 [*3][1968]; Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). When the movant has made a primie facie case, the burden of going forward shifts to the party opposing the motion (Zuckerman v. City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion

be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (Westhill Exports, Limited v. Pope, 12 NY2d 491 [1963]).

The exact relationship of the parties at the time of the December 5, 1996 retainer has not been established. The submission of tax documents and other miscellaneous documents do not establish that the objectant was not "associated" with the movant for the purpose of whether or not he was required to file a separate retainer agreement. It appears from the papers submitted that the objectant used the movant's office and telephone number as his office and his telephone number. The full extent of their relationship has not been demonstrated to the court. For example, the court does not know if the objectant paid rent to the movant, if the objectant had any independent clients in December, 1996 and, if he did, whether the movant shared in such fees. The fact that someone is given a Form 1099 instead of a Form W-2 is not necessarily determinative as to whether that person is properly treated as an employee (see Matter of Local 54 United Paperworkers Intl. Union [Commissioner of Labor], 301 AD2d 922 [2003]; Matter of Werner [CBA Indus.- Hudacs], 210 AD2d 526 [1994] lv. den. 86 NY2d 702 [1995]).

The movant cites Carter v. Katz, Shandell, Katz and Erasmous (120 Misc 2d 1009 [1983]) and Rabinowitz v. Cousins (219 AD2d 487 [1994]) to support his position that, unless the assisting attorney is an associate in the firm of the attorney of record, the assisting attorney must file his own OCA retainer statement to share in any legal fee. Assuming arguendo that this is the law, reading the papers in the light most favorable to the party opposing the motion, there has been no definitive showing that the relationship between the movant and the objectant clearly establishes that they were distinct and separate entities requiring that the objectant file a separate retainer statement to "protect the public through monitoring of the fees charged by practitioners at the Bar" (Rabinowitz v. Cousins, supra, at 488). Here, the objectant was listed as the referring attorney on the movant's retainer statement and they both appear to agree that the objectant performed whatever legal services the movant requested on the matter in exchange for modest compensation. For the purpose of deciding this motion, the court must accept the objectant's contention that the movant agreed to pay him additional compensation, the amount of which depended upon obtaining a recovery in the negligence action and the amount of work performed by the objectant. A more complete picture of the relationship between the parties has to be presented before the court determines whether the filing of a retainer statement by the objectant was needed for the protection of the public.

Furthermore, it would seem that, under this fact pattern, where a more experienced attorney enters into a fee sharing relationship with a newly admitted attorney who he is mentoring and the more experienced attorney is aware that a separate OCA statement is required and fails to advise the novice about this requirement, a question might be raised as to whether he was duty-bound to so advise. The consequences of this failure might be that the client should be the one to benefit by the inability of the novice attorney to collect any fee, rather than the experienced attorney receiving more than he bargained for as his share of the fee.

Accordingly, due to the existence of questions of fact as to the relationship of the two attorneys, the motion for summary judgment and the other requests for relief are denied. The matter [*4]is placed on the calendar for a pre-trial conference on June 22, 2005 at 9:30 a.m.

This decision constitutes the order of the court. The Chief Clerk shall mail a copy of this decision and order to the respective attorneys

Proceed accordingly.

SURROGATE