Opinion
2008-5 RI C.
Decided on December 5, 2008.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered April 18, 2007. The order, insofar as appealed from, granted a motion by respondent to vacate an infant's compromise order to the extent of modifying the order by reducing the amount of legal fees awarded to petitioners' attorney.
Order, insofar as appealed from, reversed without costs and respondent's motion to vacate the infant's compromise order denied.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
This infant's compromise proceeding arose out of a motor vehicle accident which occurred on September 15, 2005, in which an infant pedestrian, Alpha Diallo, allegedly sustained serious injuries when he was struck by a motor vehicle owned by respondent. The infant's mother, Darlene Diallo, retained counsel, who filed a claim with respondent's insurance carrier, AutoOne Insurance (AutoOne). The insurance carrier is not a party in this matter. Based upon his receipt of a letter from AutoOne confirming the settlement of the infant's claim for $25,000, petitioners' counsel made an application for an infant's compromise order. The Civil Court granted the unopposed application and issued an order settling the claim for $25,000. The attorney's fees awarded were in the sum of $8,149.55, representing one-third of the recovery after deducting costs and disbursements, pursuant to the retainer agreement signed by the infant's mother. A motion by petitioners for entry of a judgment in the sum of $25,000 was granted on default.
Respondent thereafter moved, inter alia, to vacate the infant's compromise order based upon a contention that the matter was settled for $3,000, not $25,000. At a hearing on the motion, AutoOne's adjuster testified that as a result of an apparent clerical error, two settlement letters had been sent to petitioners' counsel. The adjuster stated that he did not authorize the $25,000 letter, but did instruct the clerical department to send petitioners' counsel a letter offering to settle the case for $3,000. Petitioners' counsel maintained that he had received only one letter confirming the settlement of the infant's claim in the amount of $25,000. We note that there is no indication in the record that the $25,000 offer was withdrawn.
In an order entered April 18, 2007, the Civil Court found that the parties had settled the matter for $25,000 and determined that, after disbursements totaling $1,430, respondent's insurance carrier was to pay petitioner Darlene Diallo the net sum of $15,713.34, to be deposited into an interest bearing account until Alpha Diallo turned 18 years old. The Civil Court further ruled that petitioners' counsel's fees were to be in the sum of $1,000 rather than one-third of the $23,570 balance of the settlement amount, after deducting costs and disbursements, i.e., $7,856.66. The court reasoned that the attorney's fees should be based upon the insurance carrier's $3,000 offer, rather than the $25,000 offer, because it deemed petitioners' counsel to have accepted the lower offer in light of his testimony that he kept no record of his communications with AutoOne. The basis of petitioners' appeal is the court's reduction of the settlement amount.
The Civil Court's finding that the matter was settled for $25,000 is supported by the record. Having found that the matter was so settled, the court was required to disburse the full $25,000. Consequently, respondent's motion to vacate the infant's compromise order should have been denied in its entirety.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.