Opinion
05 Civ. 10272 (JFK).
March 25, 2008
MEMORANDUM ORDER
Plaintiffs' counsel, David DeToffol, Esq. ("DeToffol"), has applied for approval of the settlement of this wrongful death action and for an award of costs and attorney's fees to be paid from the settlement.
Rule 83.2(b) of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York "provides that in any action for wrongful death, the court shall approve the terms of any settlement where `required by statute or otherwise' and "shall approve an attorney's fee only upon application in accordance with the provisions of the New York State statutes and rules." Goldstein v. St. Luke's-Roosevelt Hosp. Center (In re Goldstein), 430 F.3d 106, 108 (2d Cir. 2005) (quoting Local Civil Rule 83.2(b)). The court must determine whether the proposed settlement is "`fair, reasonable and adequate' by comparing `the terms of the compromise with the likely rewards of litigation.'" Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 654 (2d Cir. 1999) (quotingMaywalt v. Parker Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1995)). A strong presumption exists that a settlement is fair and reasonable where "(i) the settlement is not collusive but was reached after arm's length negotiation; (ii) the proponents have counsel experienced in similar cases; [and] (iii) there has been sufficient discovery to enable counsel to act intelligently. . . ." Ross v. A.H. Robins Co., 700 F. Supp. 682, 683 (S.D.N.Y. 1988).
Although Plaintiffs' counsel styles the present application as a motion for voluntary dismissal pursuant to Federal Rule 41(a)(1), I consider the proposed settlement as arising under Local Civil Rule 83.2.
DeToffol has provided an affidavit in which he sets forth the terms of the proposed settlement and the award of costs and attorney's fees. The settlement calls for Defendants Pradera Realty Co. and Anastasios Tzezailidis (collectively, the "Pradera Defendants") to pay $12,500 and for Defendants 287 10th Glass Restaurant, Inc., Timothy Sherry, and Fernando Henao (collectively, the "Glass Defendants") to pay $25,000 to Plaintiffs in exchange for general releases and dismissal of Plaintiffs' claims. The terms of the settlement also call for DeToffol to receive a contingency fee of one third of the net settlement fund, after reimbursement of expenses, as provided in the retainer agreement DeToffol entered into with Alfred and Nancy Ratcliffe, the administrators of decedent Courtney Ratcliffe's estate. The proposed settlement also provides for reimbursement of litigation costs to DeToffol in the amount of $12,104.68. DeToffol has provided a line item accounting of those expenses, which include disbursements for expert witness services, court costs, legal research, service of process, travel, and other reasonable litigation costs. After reimbursement of costs, Plaintiffs will receive $16,930.22 and DeToffol will receive $8,465.10.
The proposed settlement and award of costs attorney's fees are fair, reasonable, and adequate. There is nothing in the record to rebut the presumption that the settlement was reached only after arms' length negotiation by competent counsel. The parties reached their agreement only after the close of discovery and after conducting extensive motion practice. Plaintiffs' claims against the Pradera Defendants had been dismissed on summary judgment, and a briefing schedule had been set for the Glass Defendants' summary judgment motion. In light of the procedural posture of this case, it was doubtful whether further litigation would yield any recovery for Plaintiffs. When balanced against the uncertain prospects and added expense of continued litigation, the settlement provides a certain cash recovery to the plaintiffs that is fair, reasonable, and adequate.
The proposed attorney's fee of one third of the net settlement amount is also reasonable. Under 22 N.Y.C.R.R. § 603.7, which governs the conduct of attorneys in wrongful death actions in the First Department, "[a] percentage not exceeding 33-1/3 percent of the sum recovered" is deemed to be a "reasonable fee." Id. § 603.7(e)(2). See also Dullard v. Berkeley Associates Co., 606 F.2d 890, 896 (2d Cir. 1979) ("[I]n a wrongful death suit contingent fees of as much as one-third of the net recovery (after deducting expenses) are presumptively permissible"). Thus, DeToffol's proposed contingency fee is in accord with applicable New York law, in compliance with Local Civil Rule 83.2. Finally, the expenses for which DeToffol seeks reimbursement are standard litigation expenses.
In sum, I approve the proposed settlement and award of attorney's fees and costs as fair, reasonable, and adequate. Defendants are directed to deliver their respective settlement checks to Plaintiffs' counsel. Plaintiffs' remaining claims, and all remaining cross claims, are dismissed with prejudice, and this case is closed. The Clerk of the Court is respectfully directed to remove this matter from my docket.