Matter of Montero

[*1] Matter of Montero 2006 NY Slip Op 50517(U) [11 Misc 3d 1072(A)] Decided on March 30, 2006 Sur Ct, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 30, 2006
Sur Ct, Bronx County

In the Matter of the Estate of Genaro Montero, Also Known as Genaro Ruiz-Montero, Deceased.



11-M/2006

Lee L. Holzman, J.

This is an application by the administrator of the estate to compromise causes of action arising from the decedent's death and to judicially account for the recovery.

The decedent was struck by a motor vehicle while he was riding a bicycle and died intestate on March 4, 2000. The decedent's sole distributee is a son who consents to the relief requested. Under the circumstances presented, including the consent of the New York State Department of Taxation and Finance, the lack of any debts or claims being presented that are not being satisfied herein, and that the decedent did not regain consciousness after the accident, the request to allocate the entire proceeds to the wrongful death action is approved.

Counsel is seeking disbursements to compensate other attorneys for services rendered in opposing two intermediate appeals in the underlying negligence litigation. The retainer agreement dated June 2, 2000 states that: The client hereby gives you the exclusive right to take all legal steps to enforce this claim through trial and appeal. The attorney shall have the right but not the obligation to represent the client on appeal.

The "appeal" in the retainer agreement must be construed as an appeal after trial inasmuch as the agreement provides for representation of the "claim through trial and appeal". Here, the services with respect to the two appeals were for the purpose of opposing the defendants' efforts to transfer the action from Bronx County to Orange County. The appeals taken in this case did not concern any final disposition of the underlying litigation. Therefore, the disbursements sought for services rendered by other attorneys concerning these appeals are disallowed inasmuch as the language of the retainer agreement does not refer to an appeal of a non-dispositional decision during the pretrial stages of the underlying litigation.

It is also noted that even if counsel was not obligated to handle the venue appeal, the last sentence in the retainer agreement provides as follows:

In the event the Client is represented on appeal by another attorney, Attorney shall have the option of seeking compensation on a quantum meruit basis to be determined by the court.

Here, since counsel seeks to receive his contingency fee percentage rather than [*2]quantum meruit, he should not receive separate additional payment for legal services concerning the motion appellate work. Accordingly, disbursements are allowed in the reduced sum of $15,302.20 reflecting the elimination of the fees sought for the appellate work and some other items normally considered office overhead. Counsel fees are allowed in the share requested. The sum of $1,014.40 is to be paid to Judy Montero in reimbursement of the balance of the funeral expenses paid by her. The account is deemed amended in accordance with this decision and the net distributable proceeds are to be paid to the decedent's son.

Submit decree.

Dated: March 30, 2006 SURROGATE