Matter of Singh

[*1] Matter of Singh 2009 NY Slip Op 52312(U) [25 Misc 3d 1227(A)] Decided on November 9, 2009 Sur Ct, Kings County Johnson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2009
Sur Ct, Kings County

In the Matter of the Final Accounting of the PUBLIC ADMINISTRATOR OF KINGS COUNTY as the Administrator of the Estate of Damadath Singh, Deceased.



2565/2002



For Petitioner

Steven R. Finkelstein, Esq.

90 Broad Street, Suite 1700

New York, NY 10004

Diana A. Johnson, J.

In this uncontested accounting proceeding, the Public Administrator of Kings County (Public Administrator) seeks judicial settlement of his account consisting solely of the proceeds from the settlement of a cause of action arising from the decedent's wrongful death and conscious pain and suffering.

The combined action for the decedent's wrongful death and conscious pain and suffering was settled before Justice Gerard Rosenberg in an order dated February 25, 2008 for the sum of $300,000. Said order anticipated that the settlement sum would be reduced in the course of the pending bankruptcy proceedings. The Public Administrator was eventually able to recover $145,096.11. Justice Rosenberg's order further directed the Public Administrator to petition this court for a judicial determination of reimbursement of liens and legal disbursements, payment of attorneys fees and distribution of the settlement proceeds. Pursuant to said order, the Public Administrator has filed his account requesting attorneys fees for trial counsel, Bonina & Bonina, P.C. (Bonina), incoming estate counsel, Steven R. Finkelstein, Esq. (Finkelstein) and outgoing estate counsel, Louis R. Rosenthal (Rosenthal).

Bonina represented the decedent's surviving spouse who initially petitioned the court for letters of administration and served as trial counsel to the Public Administrator in the prosecution of the claims for the decedent's wrongful death and conscious pain and suffering. During the administration proceeding, Rosenthal [FN1] represented the Public Administrator. Rosenthal was [*2]replaced as counsel to the Public Administrator by Finkelstein [FN2] who has prepared and filed the current pending accounting proceeding.

Bonina requests counsel fees in the sum of $42,702.32 representing 30% of the settlement sum of $145,096.11 after deduction of proposed disbursements. The record reflects that the decedent's surviving spouse retained Bonina to investigate and/or commence and prosecute the wrongful death action. Bonina was to be compensated based upon the sliding scale set forth in Judiciary Law § 474-a. After the Public Administrator became the fiduciary, the Bonina firm was retained to pursue the medical malpractice claim. The retainer agreement provided that Louis Rosenthal would receive 20% of the legal fee.

Finkelstein, who has replaced Rosenthal as the estate counsel and who currently serves as the attorney of record for the Public Administrator in this accounting proceeding, requests attorneys' fees in the sum of $5,979.43. He calculates this sum by taking six percent of the sums held by the Public Administrator after deducting the attorneys fees and disbursements requested by trial counsel, Bonina, as specified in the guidelines promulgated by the Administrative Board of Offices of the Public Administrator.

The surrogate has the inherent power to supervise the fees attorneys charge for legal services even though same are agreed upon or are unchallenged by the parties to the proceeding and notwithstanding the existence of a retainer agreement (see Stortecky v Mazzone, 85 NY2d 518 [1995]). The longstanding practice of this court in this type of matter has been to award one legal fee to all of the attorneys representing the fiduciary of the estate in a compromise proceeding through distribution (Matter of Heindel, 51 Misc 2d 26 [Sur Ct, Kings County 1966]). This custom has held whether or not the Public Administrator served as the fiduciary of the estate (see Estate of McNeil, NYLJ, Oct. 8, 2008 at 41, col 6 [Sur Ct, Kings County]).

Moreover, counsel to the Public Administrator are bound by other guidelines which cover their compensation. Said guidelines provide the following, in part:

"In the absence of extraordinary circumstances, the Public Administrators shall require their counsel to limit their request for compensation in any estate to an amount not to exceed a fee computed under the following schedule: Schedule of sliding scale maximum legal fee based upon the gross value of the estate ("total charges" reported in the account)

(Interim Report and Guidelines of the Administrative Board for the Offices of the Public Administrators Pursuant to Surrogate's Court Procedure Act Section 1128, Approved by the Board October 3, 2002). The guidelines further provide the following in the instances involving recoveries of the decedent's wrongful death.

"In the absence of special circumstances, the Public Administrator shall require that the total fees of counsel retained to prosecute a wrongful death action and counsel for the Public [*3]Administrator for legal services for administering the estate shall not exceed the fee allowed by the Surrogate's Court (in the applicable county) for such services in cases in which the Public Administrator is not the fiduciary. The total of all fees paid to counsel for the Public Administrator shall not exceed the guidelines of the Administrative Board enacted October 3, 2002.

This guideline shall apply to estates where letters issued to the Public Administrator on or after March 21, 2006."

(Guideline of the Administrative Board for the Offices of the Public Administrators Pursuant to Surrogate's Court Procedure Act Section 1128, Approved by the Board March 20, 2006).

Trial counsel has requested that their fee be set pursuant to Judiciary Law § 474-a in the sum of $42,702.32. They commenced the administration proceeding and represented the decedent's spouse in her quest for letters of administration. Bonina also commenced and prosecuted the cause of action for wrongful death and conscious pain and suffering through settlement and collection of the proceeds. Bonina has submitted an affirmation of legal services showing that approximately 70.5 hours has been spent preparing and prosecuting the cause of action for the decedent's wrongful death and conscious pain and suffering.

The current counsel to the Public Administrator, Finkelstein, has requested that, in conformance with the promulgated guidelines, his fee be calculated by taking six percent of the estate proceeds after deducting trial counsel's fees and disbursements. He asserts that he has prepared and filed the decedent's account, consisting solely of the proceeds from the wrongful death cause of action. He further asserts that he has spent approximately 27 hours preparing and litigating this matter and will spend approximately 2 more for a total of 29 hours.

At first blush it would seem as though counsel's request for two separate sets of attorneys fees runs afoul of the guidelines in that counsel's request, if granted, would award legal fees in a higher sum than the court would ordinarily allow in an estate where the Public Administrator were not the fiduciary. However, said portion of the guidelines only applies to estates where letters were issued on or after March 21, 2006. Here, the Public Administrator was appointed fiduciary of this estate by decree dated September 6, 2002.

While counsel's request may not run directly afoul of the guidelines, if granted, it would allow a higher fee than would be normally allowed by the statute or this court. Moreover, while counsel have shown that they have diligently prosecuted this matter, neither trial counsel, nor estate counsel have shown extraordinary circumstances in this proceeding warranting the court's departure from its custom and practice of allowing only one fee to be shared between all counsel in the prosecution, compromise and distribution of a cause of action for a decedent's wrongful death and conscious pain and suffering (see Estate of McNeil, NYLJ, Oct. 8, 2008 at 41, col 6 [Sur Ct, Kings County]).

Moreover, this court has previously noted that the guidelines do not relieve the court of its statutory duty to examine attorneys services rendered to an estate and set an appropriate fee taking into account all of the requisite factors. Fees awarded solely on the basis of the guideline sliding scale is insufficient to meet the Surrogate's obligations under SCPA 1108 (2) (c) (see Estate of Hai, 25 Misc 3d 236 [Sur Ct, Kings County 2009]).

In addition, the court must take into consideration the statutorily mandated guidelines [*4]regarding legal compensation in a cause of action regarding medical malpractice (see Judiciary Law § 474-a) and reconcile said statute with the guidelines and SCPA 1108 (2) (c). An application for additional legal fees in a medical malpractice action must be made in the Supreme Court before the justice where the matter was tried or settled (see Judiciary Law 474-a; Estate of Clinton, 157 Misc 2d 506 [Sur Ct, Bronx County 1993]).

After consideration of all of the factors specified in SCPA 1108 (2) (c), the sliding scale enumerated in Judiciary Law § 474-a, the guidelines and the circumstances in this proceeding, the attorneys for the Public Administrator shall receive the sum of $42,702.32 for all legal services through distribution. Disbursements are also allowed in the sum requested of $2,755.05 to be paid to Bonina in addition to their portion of the legal fee. Inasmuch as the majority of the work in obtaining the assets in this accounting was performed by Bonina in the prosecution of the wrongful death cause of action, Bonina is entitled to a majority of the legal fee. Therefore, the sum of $38,432.09 (representing 90% of the total legal fee awarded) shall be paid to the Bonina firm as its share of the attorneys fees. The remaining sum of $4,270.23 (representing 10% of the total legal fee awarded) is allocated as the portion of the fee to be divided between outgoing estate counsel, Rosenthal, and incoming estate counsel, Finkelstein, after a further hearing before this court. The issue of fixing and determining the fair and reasonable compensation to which prior and current counsel for the Public Administrator may be entitled is held in abeyance pending final determination by the court, the matter to appear on the court's calendar on such date and at such time as the court may determine.

The remainder of the proceeds shall be distributed as follows:

The sum of $6,233 shall be paid to Parbatie Singh in full satisfaction of funeral expenses.

Based upon the record the proceeds from the settlement are allocated to the cause of action for the decedent's wrongful death. Accordingly, the balance shall be paid to the distributees of the decedent based upon pecuniary loss (EPTL 5-4.4; Matter of Kaiser, 198 Misc 582 [Sur Ct, Kings County 1950]) as follows:

Parbatie Singh97.4 %

Candace Singh2.6 %

Settle decree.

/s/

HON. DIANA A. JOHNSON

S u r r o g a t e

Dated:Brooklyn, New York

November 9, 2009 Footnotes

Footnote 1: Rosenthal has since been suspended from the practice of law (Matter of Rosenthal, 57 AD3d 1085 [3d Dept 2008], lv denied 12 NY3d 739 [2009], cert denied ____ S Ct ____, 2009 WL 1390861 [2009]).

Footnote 2: Finkelstein was appointed as counsel to the Public Administrator by former Surrogate Frank Seddio.