Matter of Fant (Rosa-Myers)
Annotate this CaseDecided on February 1, 2019
Surrogate's Court, Queens County
In the Matter of the Application of Katherine Rosa-Myers, as Executor of the Estate of Marilyn English Fant, Deceased, for leave to compromise a cause of action for wrongful death of the decedent and to render and have judicially settled an account of the proceedings as such Executor.
2015-51/C
Attorney for Petitioner:
Perry S. Fallick, Esq.
The Morelli Law Firm
777 Third Avenue, 31st Floor
New York, NY 10017
Peter J. Kelly, S.
This petition for leave to settle and compromise causes of action for the personal injuries and the wrongful death of decedent and to judicially settle the executor's account is determined as follows:
The discontinuance of the cause of action for the wrongful death of the decedent and the settlement of the cause of action for the personal injuries of the decedent in the amount of $450,000.00 is approved.
Attorney's fees are allowed in accordance with Judiciary Law § 474-a and shall include the preparation, execution and entry of the decree herein.
Petitioner also seeks an award for disbursements totaling $53,077.84. Petitioner's original schedule of disbursements set forth expenses for, inter alia, legal research, and reimbursement for expenses paid to the following legal service providers: HealthPort; US Legal Support (NY); Provest; eLaw; Deluxe Delivery Systems; Uber Technologies; PM Legal; IOD Incorporated and Equitrac.
Since the schedule of disbursements failed to provide any description or explanation of the charges by the legal service providers, this matter was held in abeyance, pursuant to the decision of this court dated November 16, 2018, pending the submission by counsel of a detailed affirmation setting forth the nature, necessity and circumstances for these disbursements and an explanation of the authority relied upon for classifying same as reimbursable disbursements.
Petitioner has provided the court with the requested affirmation. The explanations for payments to the legal service providers are summarized as follows:
1) HealthPort - certified copies of medical records
2) US Legal Support (NY) - court reporting and transcription service
3) Provest - service of process
4) eLaw - calendar watch service
5) Deluxe Delivery Systems - only described as a "delivery service"
6) Uber Technologies - only dates for use of Uber car service are listed
7) PM Legal - service of subpoenas for records and witnesses at trial
8) IOD Incorporated - copies of electronic medical records
9) Equitrac - Printing and copying in context of litigation
Petitioner argues that all the expenses claimed and set forth in the schedule of disbursements should be allowed as reasonable and customary expenses of the litigation.
The right to be reimbursed for disbursements is entirely dependent upon the existence of statutory authorization (CPLR § 8301; see North Oyster Bay Baymen's Assn. v Town of Oyster Bay, 150 AD3d 865, 868 [2d Dept 2017]; Allied Excavating Corp. v Graves Equipment Co., 99 AD2d 499 [2d Dept 1984]; McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C8301:1 at 191; Weinstein-Korn-Miller, NY Civ Pra" target="_blank">see generally e.g. Derr v Fleming, 108 AD3d 854 [3d Dept 2013]; Hartmann v Fox, 87 AD2d 885 [2d Dept 1982]). As none of the above listed expenses are specifically enumerated as appropriate disbursements in the statute, counsel is apparently relying on CPLR § 8301 (a)(13) which allows other items to be taxed as disbursements "according to the course and practice of the court."
Initially, the court is mindful that medical malpractice actions, like most complex personal injury actions, are extremely lengthy in nature and characterized by extensive record production, prodigious expert disclosure exchanges, numerous depositions and quite frequently voluminous motion practice. It is also true that while plaintiff's counsel's fees are, by act of the legislature (see Judiciary Law § 474-a), limited in scope, the expertise of counsel and the costs associated to successfully prosecute such actions are greater than what is necessary to litigate other personal injury matters. As a result, the court is of the opinion that trial counsel is entitled to common sense and practical guideposts in the court's consideration of what is a taxable disbursement in these actions.
Accordingly, the court finds, based upon the supporting documentation supplied, all of the disbursements sought with the exception of Deluxe Delivery Systems, Uber Technologies, parking and computerized legal research should be allowed.
As the supplemental affirmation does not contain any proof as to whom was provided parking, Uber services other than counsel, or why the special delivery service utilized should be classified in a manner other than regular office mailings, those items are clearly nothing more than ordinary office overhead and should be disallowed.
Additionally, the characterization of "computerized legal research" as a disbursement must be specifically addressed as these expenses have sporadically been requested over the last few years.
Petitioner has requested reimbursement of $5,605.00 for the expense of legal research paid to Thompson Reuters - West and argues that other courts have permitted disbursements for legal research in circumstances where that expense was not taken into account in computing the [*2]attorney's billing rates, and the normal practice for the firm was to bill the clients separately for these disbursements (citing Perez v Rodino, 184 Misc 2d 855, 859 [Sup Ct, New York County 2000]; Matter of Aiken, 160 Misc 2d 587 [Sur Ct, NY County 1994]; Matter of Herlinger, NYLJ, April 28, 1994 at 28, col 6 [Sur Ct, NY County]; Matter of Delancey, NYLJ, Sept. 25, 1996 at 25, col 2 [Sur Ct, Suffolk County]).
The cases cited referencing courts of concurrent jurisdiction are either inapplicable (see Perez v Rodino, supra), or are unpersuasive, as they completely misinterpret the distinction between a disbursement and a legal fee. Regardless of how counsel chooses to characterize the manner in which this item is billed, a legal fee is not, and can not be a disbursement.
For centuries, legal research and writing have constituted the basic foundational elements of the practice of law. Essentially, legal research is what counsel does in order to earn a fee; it constitutes a legal service rendered to a client.Attorney's fees have been historically disallowed as a disbursement (see Weinstein, Korn & Miller, NY Civ Prac CPLR ¶ 8301.4 [2d ed]). Legal research, whether performed by computer or with published, hard copy legal resources, is merely a substitute for an attorney's time and is not a separate taxable item (see United States ex rel. Evergreen Pipeline Constr. Co. v Merritt Meridian Constr. Corp., 95 F3d 153, 173 [2d Cir 1996]); see e.g. Matter of City of New York, 24 Misc 3d 1251 [A] [Sup Ct, Queens County 2009]; Noghrey v Town of Brookhaven, 17 Misc 3d 1102 [A] [Sup Ct, Suffolk County 2007]). It is a well settled rule in New York that attorney's fees are considered an incident of litigation and, unless authorized by statute, court rule, or written agreement of the parties, are not recoverable (see Hooper Assoc. v AGS Computers, 74 NY2d 487 [1989]; Culinary Connection Holdings Inc v Culinary Connections of Great Neck Inc., 1 AD3d 558, 559 [2d Dept 2003]) and will not be inferred (Campbell v Citibank, 302 AD2d 150, 154 [1st Dept 2003]).
Although petitioner states that the retainer agreement allows for reimbursement of the expenses for computerized legal research, this claim is belied by the express terms of the retainer agreement which make no reference to computerized legal research. In any event, the court would not be bound by said terms (see Stortecky v Mazzone, 85 NY2d 518 [1995]).
Accordingly, disbursements are granted in the amount of $46,919.17.
As set forth in the stipulation dated October 18, 2018, the Department of Social Services of the City of New York shall be paid in the sum of $45,000.00 in satisfaction of its Medicaid lien.
In the absence of opposition, the sum of $4,305.35 shall be paid to Joseph Levin P.C. in satisfaction of its claim.
In the absence of opposition, the sum of $32,808.58 shall be paid to LawCash in satisfaction of its lien.
The net proceeds of the settlement for the cause of action for personal injuries shall be distributed pursuant to decedent's will as set forth in the petition.
Settle decree.
Dated: February 1, 2019
____________________________
SURROGATE
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