Franklin v Hall
Annotate this CaseDecided on December 15, 2009
Supreme Court, Kings County
Cynthia Franklin, Individually, and as Mother and Natural Guardian of minors AMALYA MITCHELL and ANYA CAYNES, and as ADMINISTRATRIX OF ESTATE OF AMALYA MITCHELL, Plaintiffs,
against
Trevaughn Hall, Defendant.
39044/2006
Plaintiff's counsel
Jeffrey Hirsch (appeared at oral argument)
DEBRA HIRSCH, ESQ. (counsel of record)
30 Washington Ave
Cedarhurst, NY 11516-1909
(516) 295-7855
Defendant's counsel
Betsy Kim Silverstine (appeared at oral argument)
MORRIS DUFFY ALONSO & FALEY (counsel of record)
2 Rector Street 22nd Floor
New York, NY 10006-1839
(212) 766-1888
Francois A. Rivera, J.
By notice of motion filed on August 31, 2009, under motion sequence number three, counsel to Cynthia Franklin (hereinafter Franklin), the mother and natural guardian of Anya Caynes, an infant, seeks an order permitting him to accept a settlement offer for Anya Caynes and for an order setting his legal fee, without Franklin's consent. Defendant does not oppose the application.
In support of the motion counsel submits his affirmation and annexed exhibits.
The defendant appeared through counsel and did not oppose the motion. Franklin
did not appear or submit opposition to her attorney's motion.
LAW AND APPLICATIONCPLR § 2214 states in relevant part that a notice of motion shall specify the time and [*2]place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor.
Contrary to the requirements of CPLR § 2214, counsel did not set forth either the procedural rule utilized for bringing the motion or the substantive law supporting the relief requested. The motion must therefore be denied.
Although the motion is disposed of on procedural grounds, the court finds it appropriate to address certain aspects of the application for the benefit of all parties. According to counsel's affirmation, the infant, Anya Caynes, brought the instant action through Franklin, her mother and natural guardian. Counsel avers that Franklin would not sign the infant compromise papers or send the infant to a doctor for a final physical examination although she previously approved the settlement offer. Frustrated by the guardian's unexplained lack of cooperation, counsel seeks permission to accept the offer of $24, 999.00 made by the defendant's insurer without the guardian's express consent.
Unless there has been an appointment of a guardian ad litem, as provided by CPLR §1202 a person under the age of 18 may only appear by one of the other representatives enumerated in CPLR §1201 (Crumpton v. Most, 12 Misc 3d 575 [N.Y.Sup.,2006]). These would include a guardian of the property, or if there be none, a parent having legal custody, or if no such parent, by another having legal custody, or if the infant is married, by an adult co-resident spouse (id.). In the event of a settlement on behalf of such an infant, a motion for approval must be made, to the Court, by one of these representatives, as provided in CPLR §1207 (id.). The procedure for settlement of a civil action on behalf of a person, under the age of 18, is set forth, in some detail, in CPLR §1208 which requires, among other information to be submitted to the Court, an affidavit from the infant's representative (CPLR §1208[a]); an affidavit from attorney of the representative of the infant (CPLR §1208[b]); and medical or hospital reports if the claim is for damages caused by personal injuries (CPLR §1208[c]).
The instant application does not state the child's age, residence nor the nature and extent of her injuries. In accordance with CPLR §1208[a][2] and [4], this information should be contained in the affidavit of the infant's representative. The instant application does not contain an affidavit from Cynthia Franklin and counsel did not provide this information within his affirmation. Furthermore, contrary to the requirements of CPLR §1208[c], the application lacks medical or hospital reports setting forth the infants' injuries and prognosis. This information is crucial to assess and evaluate the reasonableness of the settlement amount being offered. Although counsel avers that the infant has made a good recovery and that the amount being offered by the defendants' insurer is the maximum amount available within the insured policy limits, the averments do not satisfy the requirements of CPLR § 1208[c].
Moreover, the instant application is fundamentally flawed because contrary to the requirements of CPLR §1207, the application is not being made by the representative of the infant. Rather the application is being made by the lawyer for the guardian without the guardian's permission. Counsels affirmation would support an application to be relieved as counsel or to seek a substitution of the guardian of the infant. Counsel, however, is not seeking such relief. Without Franklin's consent, counsel has no authority to request the relief he is seeking. [*3]
Counsel also seeks an order approving a legal fee set at one third the amount offered for settlement. In rendering a determination as to "suitable compensation" of an attorney in a case involving an infant, within the meaning of Judiciary Law, the court must determine the reasonable value of the legal services provided in light of all of the facts and circumstances, with consideration given to any agreement as to compensation, and award an amount consistent with such a determination and with the court's duty to ensure fair and adequate compensation for the infant (White v. Daimler Chrysler Corp., 57 AD3d 531at 534[2nd Dept., 2008].
Judiciary Law § 474 sets forth the general rule as to attorney compensation, providing that "[t]he compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law."(id.). If the action involves an infant, a judicially-declared incompetent, or a conservatee, the settlement of the action, including the amount of the attorney's fee, must be approved by the court (see CPLR §1207) (id.). This requirement arises from the court's duty to protect infants and other wards of the court (id.). In light of the courts denial of counsel's application for approval to settle the action, counsel's application for approval of a legal fee is premature and denied without prejudice.
The instant application is denied.
The foregoing constitutes the decision and order of this court.
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