Opinion
File No. 2019-173
09-28-2021
Erica BYRNES, as Administratrix of the Estate of Carol Scharf, Plaintiff v. ST. JOHN'S HOME, St. John's Health Care Corporation, and St. John's Penfield Homes Corporation, Defendants.
Frank C. Callochia, Esq., of counsel, the Callochia Law Firm PLLC, 16 Bidwell Parkway, Buffalo, New York 14222, for the plaintiff ERICA BYRNES, as Administratrix of the Estate of Carol Scharf.
Frank C. Callochia, Esq., of counsel, the Callochia Law Firm PLLC, 16 Bidwell Parkway, Buffalo, New York 14222, for the plaintiff ERICA BYRNES, as Administratrix of the Estate of Carol Scharf.
Christopher S. Ciaccio, S.
Before the Court is a Petition to Compromise, and to allocate and distribute the proceeds of, a wrongful death/personal injury action. The action alleges that decedent Carol Scharf suffered injuries, including a fractured hip, in a fall at a nursing home and some 20 days later following surgery she died.
The Petition also requests approval of attorney fees for both the attorney who prosecuted the lawsuit and for the "estate attorney" who filed the instant Petition.
The Petition for Compromise
The Petition requests that a settlement be approved in the amount of $140,000.00, which it asserts is "fair and reasonable." The decedent was 76 years of age at the time of the accident. She apparently fell (how is not stated nor is any explanation given of the negligence of the defendant); as a result of which she sustained a fractured hip and "complications (from) multiple blunt forces" which included surgery at some point in her stay, although when the surgery took place after the accident is not clear.
Given the lack of medical records that would allow the court to assess the decedent's pain and suffering, and that no information is provided concerning the decedent's health at the time she died, the court is unable to determine whether in fact the settlement amount is "fair and reasonable."
Petition for Allocation and Distribution
The lack of medical records is also fatal to the request that the entire settlement be allocated to wrongful death. The justification is based on the "expert affirmation" of one David J. Serra, M.D., who opines that following her fall on July 13, 2017, and subsequent surgery, the decedent "did not have full awareness of the pain caused by her fall and hip fracture" and that she "had little understanding of any pain and/or suffering associated with his (sic) fractured hip." What does those statements, entirely conclusory and not based on any facts set forth in the Affirmation, even mean?
This court is familiar with hospital records that chart hour to hour a patient's responses to pain, to commands, and to treatment. Thus, the records need to be produced in order for the court to be able to determine whether the decedent experienced any pain and suffering as a result of the "complications (from) multiple blunt forces."
When she died, the decedent had three children, all adults, and presumably (again no details are given) no longer dependent on the decedent for financial support, so the notion that the defendant offered to pay $140,000 solely for pecuniary loss seems, not having the benefit of being able to review medical records that state otherwise, questionable.
Additionally, it is noted that a child of the decedent post-deceased her, one Stephen Scharf, and that he was survived by a spouse and three children. Under the terms proposed in the Petition, neither he nor his siblings have been afforded a share of the settlement. Surely, he had depended on his mother's moral support, in an amount equal to his siblings (although that supposition is not articulated or explored), and just as certainly his distributive share "vested" at the time the decedent passed away, and was not affected by his own death, a share that rightfully would go to his spouse and children. Stephen John Scharf, his son, signed a Waiver and Consent, but it is questionable that he knew what was being given up. In any re-filed Petition, the court will require the personal appearance of the children of the post-deceased son and/or of their representative.
Accordingly, the allocation of 100% to wrongful death is denied . The Court will conduct a hearing as to the appropriate allocation and distribution.
Attorney Fees
Accompanying the Petition is an Affirmation of Michael C. Scinta, Esq., of counsel to the firm of Brown Chiari LLP, which on behalf of the decedent prosecuted and ultimately settled the action He requests a fee equal to one third of the gross settlement amount of $140,000.00, or $46,666.66.
Among the services rendered were "investigating the incident," and "conducting discovery" and "negotiating liens."
He also requests "disbursements" in the sum of $3027.98, which sum includes expenditures for "research," "medicare resolution fees," a "retainer fee paid to estate attorney," "interest" on "advanced disbursements," and "deposition fees," although in his itemization of services performed, he does not mention that he conducted any depositions.
It is to be noted that the retainer was signed, and the one-third contingent fee agreed to, before the plaintiff was awarded letters of administration. Therefore, she had no authority to bind the estate to the terms of the retainer agreement, and the court is not bound to honor it.
Even if it were, the Surrogate court retains ultimate discretion over the setting of attorney fees, even where there is a retainer agreement (see e.g. In re Talbot , 84 AD3d 967 [2nd Dept 2011] ; Gair v. Peck , 6 NY2d 97 [1959] ; see generally 22 NYCRR 207.45 ]).
Nonetheless, counsel, having commenced the action and performed discovery, the fee will be approved, pending a detailed recitation of the services performed, the basis for the settlement amount and how counsel's efforts produced the settlement. Lacking that, the court retains the discretion to reduce the fee.
However, disbursements are reduced by subtracting the following items.
Estate fees to compromise the action and distribute the proceeds are ordinarily included in the one-third contingent fee (see Estate of Jane Flowers , 2018 NYLJ Lexis 907 [Surrogate Court New York County 2018]; 22 NYCRR 603.25 [e]) and in any event the retainer agreement makes no mention of the added expense. It states only that Brown Chiari LLP has been retained "to settle or prosecute the Client's claims" Clearly, seeking and securing court approval for the settlement and the distribution of the funds are part and parcel of the pursuit of an estate's personal injury and wrongful death claims.
No interest is allowed without a showing that the same was agreed to by the client, that the money came out of a line of credit and that the amount charged was actual interest. The medical resolution fee is disallowed, as the attorney indicated that his own time went into negotiating the lien.
No allowance will be made for a "medicare resolution fee," again, such a fee is integral to the settlement of the underlying action and in any event is not mentioned in the retainer agreement.
For the same reasons no allowance is made for the "research fee." It goes without saying that research is what am attorney does when he takes on a case. A separate charge for research is a mystery.
Regarding the extent of the "estate attorney fee," Frank Callochia, Esq. requests $6500.00 for services rendered. He has submitted an affirmation in which he relates that he spent 20 hours preparing the Petition and supporting papers, without any itemization of where the time was spent. A customary fee for time spent in preparing a Petition for allocation and distribution is $2500.00, which is the amount this court will approve, to be paid out of the one-third contingency fee (i.d.).
He also requests $485.00 in "disbursements," again without an itemization. Those are disallowed.
Accordingly, the Plaintiff through counsel is directed to file an Amended Petition that has as an attachment the records of the decedent's hospital stay. Also to be included in the Amended Petition is a more detailed recitation as to why this matter is worth $140,000.00, including an explanation of the negligence and a discussion of the pain and suffering (or lack thereof) sustained by the decedent; and a more detailed recitation of the services provided by both plaintiff's counsel and the "estate attorney."
Also, on the return date of the Petition the children of Stephen Scharf are to appear virtually, and counsel is directed to provide a link for their appearance.
Finally, it is noted that DCM, a Minnesota creditor, was not timely served (see SCPA 307[6] ; 308[1][a][ii]). A supplemental citation will issue.
SO ORDERED.