Matter of Pectal

[*1] Matter of Pectal 2009 NY Slip Op 50098(U) [22 Misc 3d 1112(A)] Decided on January 22, 2009 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 22, 2009
Sur Ct, Dutchess County

In the Matter of the Application of Kenneth G. Pectal, as Administrator, of the Goods, Chattels and Credits which were of, Doris M. Pectal, deceased, For leave to compromise a certain cause of action for personal injuries to the decedent and to render and have judicially settled an account of the proceedings as such Administrator.



XX09



THOMAS F. VASTI, III

VASTI & VASTI, P.C.

Attorneys for Petitioner

P.O. Box 656

1733 Main Street

Pleasant Valley, New York 12569

MICHAEL D. KRANIS, ESQ.

Attorney for Petitioner-decedent

40 Garden Street

Poughkeepsie, New York 12601

CHRISTINA M. BOOKLESS, ESQ.

McCABE & MACK, LLP

Attorneys for COUNTY OF DUTCHESS

and FELIX M. MEDINA

P.O. Box 509

Poughkeepsie, New York 12602

James D. Pagones, J.

In this proceeding, the administrator has petitioned for leave to compromise and settle an action for personal injuries for conscious pain and suffering to the decedent against Dutchess County, Progressive Transportation Services, Inc. and Felix M. Medina for the sum of $100,000.00.

Petitioner further requests a decree modifying his letters to permit the settlement, to dispense with posting a bond, to fix the fees of attorneys Michael D. Kranis and Thomas F. Vasti, III, to direct payment of the balance of the settlement proceeds to the Dutchess County Department of Social Services to satisfy its outstanding lien against the estate and to allow petitioner to execute the necessary documents to effectuate the compromise and settlement.

The only issue for determination is attorney Vasti's request for an additional fee of $10,000.00 over and above extant retainer agreements and fee-sharing documents.

BACKGROUND

The decedent was injured in a vehicular accident on January 5, 2001. She retained attorney Michael D. Kranis ("Kranis") pursuant to a retainer agreement, dated February 23, 2001. The decedent agreed that the attorney fee would be thirty-three and one-third percent (33 1/3%) of the net sum recovered, whether by lawsuit, settlement or otherwise, plus disbursements. Kranis thereafter complied with Part 691 of the Rules of the Appellate Division, Second Department (§691.20), by filing the required retainer statement.

On February 20, 2003, the decedent signed a retainer agreement with Thomas F. Vasti, III [*2]("Vasti") as trial counsel in order to supplement and modify her retainer agreement with Kranis. Vasti was of counsel to the firm of Spiegel, Brown, Fichera, Acard & Vasti, LLP at the time. The identical one-third (1/3) attorney fee from the net recovery was memorialized in the Vasti agreement. In addition, the agreement provides:

"In the event that extraordinary services are required, you [Vasti] may apply to the Court for greater compensation pursuant to the special rules of the Appellate Division regulating the conduct of attorneys."

The decedent, Kranis and Vasti executed an Attorney Fee Sharing Agreement contemporaneously with the Vasti retainer agreement. The parties agreed that out of the one-third balance of the net proceeds from any recovery, the Spiegel firm would receive sixty percent (60%) and Kranis forty percent (40%).

Vasti thereafter filed his retainer statement with the Appellate Division. The 60-40 fee split out of the anticipated one-third attorney fee is set forth in paragraph 2 of that document.

The Spiegel firm subsequently dissolved. Vasti retained the file in this matter as part of the dissolution agreement. The decedent died intestate for causes unrelated to the accident at the age of 81 on September 14, 2006. Limited letters were issued to petitioner on February 21, 2008.

The Dutchess County Department of Social Services has a lien for the decedent's nursing home care in the sum of $219,531.04.

The personal injury action brought in the Supreme Court settled for $100,000.00. The attorney fee would be $31,623.63 after deducting disbursements from the gross proceeds of the settlement. Attorney Kranis would receive $12,649.46, and attorney Vasti would receive $18,974.17 pursuant to the Fee Sharing Agreement. The balance of the settlement proceeds will be paid to the Department of Social Services. Petitioner has waived any claim to commissions and reimbursement for paying the decedent's funeral bill. There are no other outstanding bills. The only known asset of the estate is the personal injury action.Vasti has submitted a seven (7) page affidavit detailing his services, deemed extraordinary, to serve as the basis for an additional fee of $10,000.00. The defendants, Dutchess County and Felix M. Medina, in the underlying lawsuit oppose his request.

COUNSEL FEE ISSUE

The Surrogate bears the ultimate responsibility of deciding

what constitutes a reasonable attorney's fee, irrespective of the existence of a retainer agreement. (Matter of Tendler, 12 AD3d 520 [2d Dept. 2004].)

A plain reading of the Rules of the Appellate Division, Second Department reveals that the procedure for making application for additional compensation because of extraordinary circumstances does not apply when the fee agreement is a percentage not exceeding thirty-thirty and one-third percent

(33 1/3%) of the net sum recovered. [22 NYCRR §691.20[3][2][v]).) Since the contractual agreement between the decedent, Kranis and Vasti so provides, Vasti is limited to his share of the agreed upon one-third fee. The request for additional compensation is denied.

DISBURSEMENTS

Specifically disallowed are itemized disbursements in the aggregate amount of $311.35, for regular mail, photocopies, the Copy Shack, postage, certified letter and mileage/parking, [*3]inasmuch as they constitute office overhead expected to be absorbed by counsel in the performance of his service. (Matter of Butler, NYLJ, 11/20/1998, at 35, col. 1 [Sur. Ct., Westchester County]; Matter of Diamond, NYLJ, 07/14/1993, at 30, col. 1 [Sur. Ct., Westchester County] aff'd 219 AD2d 717, 718 [2d Dept. 1995]; 7 Warren's Heaton on Surrogate's Court Practice, Seventh Edition, §93.07[8].) The remaining disbursements of counsel are approved.

The balance of the petition is granted.

On this application, the Court considered the verified petition with one (1) voluminous unnumbered or unlettered exhibit, attorney's affidavit, affirmation in opposition and reply affirmation.

Attorney Vasti is directed to submit a decree consistent with the foregoing and reflecting the adjustments to the approved disbursements, attorney fee and balance payable to the Department of Social Services. The decree shall be served with notice of settlement within ten (10) days from the date of this decision.

This constitutes the decision of the Court.

Dated:Poughkeepsie, New York

January 22, 2009

ENTER

Hon. James D. Pagones, S.C.J.

TO:

012109 decision