Veneski v Queens-Long Is. Med. Group, P.C.

[*1] Veneski v Queens-Long Is. Med. Group, P.C. 2007 NY Slip Op 52515(U) [18 Misc 3d 1118(A)] Decided on December 12, 2007 Supreme Court, New York County Heitler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2007
Supreme Court, New York County

Kevin Veneski and Juanita Veneski, Plaintiffs,

against

Queens-Long Island Medical Group, P.C. and Lawrence Sokolsky, M.D., Defendants.



100011/98



Harris D. Leinwand, Esq.

Empire State Building

350 Fifth Ave., Suite 2418

New York, NY 10118-2418

Tel.: (212) 725-7338

Fax : (212) 947-7664

Norman Leonard Cousins, Esq.

299 Broadway, Suite 1600

New York, NY 10007

Tel.: (212) 962-6460

McMahon Martine & Gallagher

90 Broad St.

New York, NY 10004

Sherry Klein Heitler, J.

This is a motion by Norman Leonard Cousins, the former counsel for plaintiffs Kevin and Juanita Veneski, for reargument or renewal of the motions decided by this court in a decision dated January 30, 2007. On reargument or renewal, Cousins seeks an order: (1) vacating this court's January 30, 2007 decision, which denied his motion for increased attorney's fees and granted, in part, the Veneskis' cross motion for reimbursement of certain funds they paid to Cousins; and (2) directing an evidentiary hearing on his motion for increased fees and the Veneskis' cross motion.

Pursuant to CPLR 2221: (d) A motion for leave to reargue: (1) shall be identified specifically as such; [*2] (2) shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and (3) shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. (e) A motion for leave to renew: (1) shall be identified specifically as such; (2) shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and (3) shall contain reasonable justification for the failure to present such facts on the prior motion. (f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.

CPLR 2221.

As a preliminary matter, counsel for the Veneskis argues that Cousins's motion for reargument is untimely because it was filed 51 days after the decision with notice of entry was served on him, rather than within 30 days as required by CPLR 2221 (d) (3). The court may, in its discretion, consider the motion, even if it is technically untimely. See Garcia v The Jesuits of Fordham, 6 AD3d 163 (1st Dept 2004). The court will do so here.

In his motion papers, Cousins has failed to separately identify the different aspects of his motion or identify the specific justifications as defined by statute. To the extent that Cousins is seeking reargument, he has also failed to indicate matters of fact or law allegedly overlooked or misapprehended by the court.

In his reply memo, Cousins cites the case of O'Connell v Shivaram (37 AD3d 435 [2d Dept 2007]) in which increased compensation was granted by the Appellate Division, arguing that it supports his original application for increased compensation. In each motion for increased compensation, the court must examine the facts before it to determine whether extraordinary circumstances exist which justify increased compensation. This court concluded that, here, no such extraordinary circumstances exist. Nothing in the O'Connell ruling indicates that this court either [*3]overlooked or misapprehended the law governing increased compensation or the facts of this case, when it denied Cousins's motion.

The motion for reargument is therefore denied.

To the extent that Cousins's motion is one for renewal, the question of timeliness is not an issue. Here again, however, Cousins has failed to specifically identify the new facts or change in law that form the basis for his motion. It appears that Cousins is relying on several documents, not previously provided, in support of his position that the check for $454,450.55 made out to Cousins by Kevin Veneski was intended to be a gift, rather than part of Cousins's fee. Those documents include a letter from Cousins to his accountant, Scott C. Singer, enclosing an Internal Revenue Service Gift Tax Form allegedly signed by Veneski on November 8, 2003,[FN1] and a letter to Mark S. Adler, signed by Veneski in 2005,[FN2] stating: "I Kevin Veneski gave Norman Cousins a gift for the work he did for my case and do not want it back. I just want to be compensated if I am sued by De Clemente and have to pay him."

These documents were obviously available to Cousins at the time that he filed his original motion and he provides no reasonable justification for failing to provide them to the court with the voluminous exhibits that he annexed to that motion, other than his claimed belief that the court was planning to hold an evidentiary hearing prior to deciding his motion. Although the court may have indicated on June 5, 2007 that it would hold an evidentiary hearing on Cousins's motion (there is no transcript of that court conference), the court may also conclude upon receipt of papers that no hearing is necessary. On October 24, 2006, when it set the date of November 13, 2006 for final submission of papers, this court indeed indicated that counsel need not appear when those papers were submitted, noting that it had already read the previously submitted papers several times. The court concluded that an evidentiary hearing was unnecessary here, and nothing submitted by Cousins on this motion convinces the court otherwise. Furthermore, as the court noted in its January 30, 2007 decision, in his affirmation dated November 13, 2006, replying to Veneski's cross motion for reimbursement, Cousins did not indicate that he was awaiting an evidentiary hearing by this court before providing a substantive response to Veneski's allegations. Rather, he stated that he would respond after the New Jersey trial in Legal Asset Funding, LLC v Cousins (Super Ct, Chancery Div - Hudson County, NJ, Docket No. HUD-C-1-04).

Having failed to provide sufficient justification for failing to present the new affidavits in a timely fashion, the motion to renew is denied as well.

Because the issues raised by Cousins relate to the obligations of an attorney under the Code of Professional Responsibility, the court feels compelled to address certain limited matters addressed by Cousins in his papers. Cousins cites several cases in support of his contention that a lawyer may accept a gift made voluntarily by his client. See Matter of Henderson, 80 NY2d 388 (1992); Matter of Buchyn, 300 AD2d 739, 741 (3rd Dept 2002). However, Cousins appears to have overlooked the [*4]fact that both of those cases stress the importance of ensuring that the purported gift-giver has independent counsel, in order to overcome the inference of undue influence by the attorney. In Buchyn, the Court states that, under the Code of Professional responsibility, before a lawyer accepts such a gift, he should urge his client to consult with an independent attorney. See Matter of Buchyn, 300 AD2d at 741; Code of Professional Responsibility, Canon 5.[FN3] In Henderson, the Court of Appeals concluded that, despite the fact that the testator's will was drawn up by independent counsel, a hearing on undue influence was appropriate, because the independent counsel indicated in his deposition that he never seriously inquired into the testator's decision to leave a large portion of her assets to her attorney and virtually disinherit her sister. Matter of Henderson, 80 NY2d 388, supra. In so ruling, the Court of Appeals stated: As this Court has previously observed, a question of undue influence often arises when a person in a position of trust and confidence becomes the object of the other party's generosity. "[W]here a fiduciary relationship exists between parties, transactions between them are scrutinized with extreme vigilance.'" Such scrutiny is especially important when attorney-beneficiaries are involved, since the intensely personal nature of the attorney-client relationship, coupled with the specialized training and knowledge that attorneys have, places attorneys in positions that are uniquely suited to exercising a powerful influence over their clients' decision.

Id. at 394 (internal citations omitted).

In contrast with Henderson, here no document was drawn up by an independent counsel memorializing Veneski's desire to give Cousins a gift of over $400,000. Nor is there even any indication that Cousins urged Veneski to obtain independent counsel before purportedly offering him such a generous gift. Discussing the matter with attorney Mark S. Adler, one and a half years later in the context of the New Jersey litigation against Veneski hardly satisfies Canon 5, let alone the decisions in Buchyn and Henderson.

If there were ever a situation crying out for an attorney to follow the directives of Canon 5, it is in this case. As Cousins indicated in his affirmation in support of his motion for increased compensation, as a result of an automobile accident, Kevin Veneski was in a coma following a 1988 automobile accident and suffered permanent brain damage. Affirmation of Norman L. Cousins, dated February 1, 2006, at 71. Then, he states that Veneski was subject to medical malpractice by defendants, causing a thromboembolic stroke. Id. at 21. Cousins describes the impact of that stroke on Veneski, as depicted in a defendants' surveillance tape, as follows: [*5] It showed Kevin Veneski sitting on his doorstop outside his apartment house in Brooklyn on a beautiful day in the middle of the week doing absolutely nothing, while the world was full of people bustling around him. It was the same man who, before his 1996 stroke, was a successful electrician, independent electrical contractor, Con Ed computer operator and graphic designer.

Id. at 77-78. According to Cousins, the challenge he faced was distinguishing between the brain damage that Veneski suffered as a result of the automobile accident from that which he suffered as a result of the medical malpractice.

Particularly, under these circumstances, it is imperative that a lawyer who intended to accept a substantial gift from his client insist that his client seek independent counsel and refuse to accept such a gift unless it was memorialized in a writing drafted by that independent counsel. Code of Professional Responsibility, Canon 5 (Ethical Considerations 5-5). None of that was done here. Thus the court finds it incredible that Cousins even sought to claim that his client gave him such a large gift absent careful adherence to the procedures outlined in the Code of Professional Responsibility. In this regard, the scrutiny referred to in Henderson, supra, is well satisfied without the necessity of a hearing. The Vaneski's were never advised by Cousins to obtain independent legal counsel, and the disputed question whether such payment was a gift was properly resolved against Cousins.

This court previously referred the question of the propriety of certain disbursements charged by Cousins to Veneski. Until that reference is completed, it will not be possible to accurately calculate Cousins's proper total fee for this litigation. Thus, the court will await the final determination of the referee's report and recommendation, dated November 19, 2007, before determining the amount of reimbursement to which Veneski is entitled.

Accordingly, it is hereby

ORDERED that the motion for reargument or renewal is denied; and it is further

ORDERED that the amount to be reimbursed to Veneski is held in abeyance pending the final determination of the report and recommendations of the referee, dated November 19, 2007, in response to this court's order dated January 30, 2007.

Dated:DECEMBER 12, 2007

ENTER:

___________________________

SHERRY KLEIN HEITLER

J.S.C. Footnotes

Footnote 1:The tax form is dated January 2, 2004, but according to

the affidavit of Scott C. Singer, he received it from Cousins with a letter, dated November 10, 2003, and a copy of Veneski's check, and he, Singer, dated the form 1/2/04.

Footnote 2:The court cannot determine from the copy provided by Cousins in what month the letter was written.

Footnote 3:Canon 5 (Ethical Considerations 5-5) states: "A lawyer

should not suggest to the client that a gift be made to the lawyer or for the lawyer's benefit. If a lawyer accepts a gift from the client, the lawyer is peculiarly susceptible to the charge that he or she unduly influenced or overreached the client. If a client voluntarily offers to make a gift to the lawyer, the lawyer may accept the gift, but before doing so, should urge that the client secure disinterested advice from an independent, competent person who is cognizant of all the circumstances. Other than in exceptional circumstances, a lawyer should insist than an instrument in which the client desires to name the lawyer beneficially be prepared by another lawyer selected by the client."