Opinion
4496/11
10-13-2016
Christopher J. Ficaro and VICTORIA PAGAN FICARO, Plaintiffs, v. C.M. Alexander a/k/a CHRISTINA M. ALEXANDER, Defendant.
Attorneys Plaintiff Bonita E Zelman 2001 Marcus Avenue Lake Success, NY 11042 Defendant Wesley M Serra Esq. Sclar Adler, LLP 120 West 45th Street NY, NY 10036
Attorneys Plaintiff Bonita E Zelman 2001 Marcus Avenue Lake Success, NY 11042 Defendant Wesley M Serra Esq. Sclar Adler, LLP 120 West 45th Street NY, NY 10036 William J. Giacomo, J.
The following papers numbered 1 to 6 were read on Bonita E. Zelman's and Sclar Adler LLP's applications to settle an order and judgment with respect to distribution of attorneys' fees earned in this case. Papers Numbered Notice of Settlement 1-3 Notice of Settlement of Counter Judgment 4-6
By Decision After Trial dated August 7, 2015 this Court determined that as between two attorneys who represented plaintiffs in this personal injury action, plaintiff's first attorneys Irom Wittels, Freund, Berne & Serra, PC ("Irom Wittels") is to receive 30% of fees earned, to wit, $99,311.79, and plaintiff's second attorney the Law Offices of Bonita E. Zelman is to receive 70% of the fees earned, to wit: $231,727.51.
By decision and order entered September 21, 2016, the Appellate Division, Second Department in Ficaro v. Zelman, ___AD3d ___, 2016 NY Slip Op 06059, 37 N.Y.S.3d 611 [2nd Dept Sept 21, 2016], affirmed this Court's August 7, 2015 decision and order. On September 28, 2016, Irom Wittels submitted a proposed order and judgment seeking $99,311.79 in attorneys fees, $21,943.14 in prejudgment interest, and costs and disbursements in the amount of $840.65, for a total judgment of $122,095.58.
On October 6, 2016, the Law Office of Bonita E. Zelman submitted a counter proposed order and judgment awarding Irom Wittels $99,311.79 in attorneys fees, interest of $37.30, and costs of $840.65 for a total judgment of $100,185.14. CPLR § 5001. Interest to verdict, report or decision
(a) Actions in which recoverable. Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion.
(b) Date from which computed. Interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.
(c) Specifying date; computing interest. The date from which interest is to be computed shall be specified in the verdict, report or decision. If a jury is discharged without specifying the date, the court upon motion shall fix the date, except that where the date is certain and not in dispute, the date may be fixed by the clerk of the court upon affidavit. The amount of interest shall be computed by the clerk of the court, to the date the verdict was rendered or the report or decision was made, and included in the total sum awarded. (Emphasis supplied)
Because this matter involves a judicial determination regarding the pro rata sharing of fees between the Law Office of Bonita E. Zelman and Irom Wittels, it is a matter sounding in equity not law. Therefore, the award of interest and that of accrual of that interest is in the discretion of the Court.
In exercise of its discretion the Court will award Irom Wittels 1% interest from June 24, 2014, the date the Law Office of Bonita E. Zelman received the settlement proceeds up to and including October 7, 2016, for a total interest award of $2,438.68.
Interest is awarded:June 24, 2014 to June 23, 2015 -$993.12
June 24, 2015 to June 23, 2016 -$993.12
June 24, 2016 to October 7, 2016 - $452.44.
Therefore, Irom Wittels is entitled to a judgment in the amount of $99,311.79, plus interest of $2,438.86, and costs of $840.65, for a total judgment in the amount of $102,591.12.
Irom Wittels shall submit a proposed judgment, on notice, within 10 days of the date of this order. Dated: White Plains, New York October 13, 2016 Hon. William J. Giacomo, JSC BONITA E. ZELMAN, ESQ. 2001 Marcus Avenue Suite S150 Lake Success, New York 11042 WESLEY M. SERRA, ESQ. SCLAR ADLER, LLP 120 West 45th Street Suite 605 New York, New York 10036