Otero v St. Barnabas Hosp.

[*1] Otero v St. Barnabas Hosp. 2022 NY Slip Op 50980(U) Decided on October 7, 2022 Supreme Court, Bronx County Capella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2022
Supreme Court, Bronx County

Carmen Otero, as Mother and Natural Guardian of S.M.A., an infant,
and CARMEN OTERO, Plaintiff,

against

St. Barnabas Hospital, ERIC R. MITCHELL, M.D., BEATRIZ TOLENTINO, R.N., and ST. BARNABAS OB/GYN, P.C., Defendants.



Index No. 22261/18



Plaintiff's Attorney
Michael A. Fruhling, Esq.
Gersowitz Libo & Korek, P.C.
111 Broadway, 12th Floor
New York, New York 10006
(212) 385-4410

Attorney for Eric R. Mitchell, M.D.
O'Connor McGuiness et al
One Barker Avenue, Suite 675
White Plains, New York 10601
(914) 948-4500

Attorney for St. Barnabas & Beatriz Tolentino, R.N.
Garbarini & Scher, P.C.
432 Park Avenue South, 9th Floor
New York, New York 10016
(212) 689-1113 Joseph E. Capella, J.

Annexed to plaintiff's motion for an order compromising and settling the instant medical malpractice action was a proposed infant compromise order that sought, inter alia, attorney fees in excess of the mandatory fee schedule set forth under Judiciary Law § 474-a. A virtual conference was held on September 26, 2022, at which time the Court notified the attorneys that it was declining to sign said compromise order given the fee [*2]request. This declination was without prejudice to submission of a new proposed compromise order with attorney fees in compliance with 474-a, and the parties were given until Monday, October 3, 2022, to submit same. Having received no new infant compromise order, plaintiff's motion is denied without prejudice to renew with an appropriate infant compromise order.

When it comes to infant compromise orders, the Courts are empowered to scrutinize the propriety and reasonableness of any proposed settlement. (Valdimer v Mount Vernon, 9 NY2d 21 [1961].) And while it is true that the Courts do have discretion to depart from the mandatory attorney fee schedule set forth under 474-a, they may do so only under extraordinary circumstances (emphasis added), such as where an attorney had to overcome a complicated procedural history, or where an inordinate amount of time is spent on the action. (Yalango v Popp, 84 NY2d 601 [1994].) Medical malpractice actions are by their very nature complex, warranting extensive and sophisticated preparation, and despite this, in 1976, the Legislature created a specific attorney fee schedule for such actions, a fee schedule which this Court must recognize as being presumptively reasonable. (Yalango, 84 NY2d 601.) Therefore, attorney fees in excess of 474-a's mandatory fee schedule are not meant to reward a diligent, thorough and successful plaintiff's lawyer, who may be very experienced, and engaged in exhaustive preparation for his client. As the Court of Appeals stated in Yalango, the considerations which are relevant to an assessment of the adequacy of 474-a fees are those related to the economics (emphasis added) of the litigation, and any concomitant financial hardship suffered by plaintiff's counsel. The procedural history in Yalango revealed that it never progressed beyond pretrial settlement negotiations, and plaintiff's counsel was not required to suspend its practice to attend to a protracted or all consuming trial. As such, the Court of Appeals found that no departure from 474-a was warranted.

The instant action's procedural history is fairly short and simple - it went from summons and complaint in 2018, a preliminary conference (PC) order in April 2018, a few depositions, and settlement in 2022. There was no pre-answer motion (CPLR 3211), no need for a compliance conference (CC) order, no discovery related motions (e.g., CPLR 3124, 3216), no summary judgment motion (CPLR 3212) and no trial. As the Court discussed with the attorneys during the virtual conference, the one action in which this Court found extraordinary circumstances was a case it handled in 2017 entitled Redish v Adler, Index No. 310294/2011. It took four years to complete discovery in Redish, beginning with a PC order followed by six CC orders, and numerous depositions. There were multiple summary judgment motions filed in 2016, and an appeal of the decisions from said motions was made. The action was restored to the trial calender after an affirmance by the Appellate Division. Thereafter, in 2017, a very complicated Frye motion was made, and this Court's decision on said motion was appealed. The action was once again restored to the trial calendar after an affirmance by the Appellate Division. A two-month long trial was held in 2019 involving at least eight experts, resulting a jury [*3]verdict in excess of $100 million. A CPLR 4401 motion was made during the trial, and a CPLR 4404 motion was made after the jury verdict. A third appeal was taken regarding the verdict, and the Appellate Division reduced the non-economic damages. In 2020, a motion for a collateral source hearing was made by one of the defendants, which this Court denied. A fourth appeal was taken regarding same, and the Appellate Division remanded the action back for a collateral source hearing. The collateral source hearing was held in 2022, and resolved by stipulation. Redish is the perfect example of what the Court of Appeals considers to be a long and complicated litigation history. This Court is not convinced that the instant action meets the necessary criteria for additional fees, and as such, the motion for same is denied. This constitutes the decision and order of this court.

Dated: 10/7/22
Joseph E. Capella, J.S.C.