Opinion
2018-9
06-12-2020
MATTER OF Amie LEWIS, Deceased.
Alexander & Catalano, LLC, now known as James Alexander & Associates, LLC
Alexander & Catalano, LLC, now known as James Alexander & Associates, LLC
Amie Lewis died intestate on July 26, 2017, as a result of a pedestrian motor vehicle accident. Her distributees are her two children, Nathan Lewis-Sague and N.B., who is a minor, now fifteen (15) years old.
A petition requesting limited letters of administration be issued to Nathan was filed with the Court on January 2, 2018, by Alexander & Catalano, LLC. After many requests for additional information, that petition was dismissed by the Court on December 26, 2018, for failure to pursue it diligently. SCPA § 209 (8). A petition to vacate that Order was filed with the Court on December 31, 2018. The remaining documents were ultimately filed with the Court thereafter. On January 18, 2018, the Court vacated its Order dismissing the petition. Limited letters of administration were issued to Nathan on that date, allowing him to pursue, but not settle, a wrongful death proceeding on behalf of the decedent's estate and distributees.
A petition requesting removal of the limitation on Nathan's letters of administration to allow settlement of claims arising from the accident which caused the decedent's death was filed with the Court on December 23, 2019. Petitioner is now represented by James Alexander & Associates, LLC, formerly known as Alexander & Catalano, LLC. The petition requests authority to settle the claims for $50,000, alleged to be the defendant's "full insurance policy available."
The petition requests that the full proceeds be allocated to the claim for wrongful death and that the net proceeds of the settlement be allocated 25% to Nathan and 75% to the infant N. B., consistent with the Kaiser formula. Knowing the parameters of the proposed settlement, the Court deemed it unnecessary to appoint a Guardian ad Litem to represent the interests of the infant distributee. The Court has independent responsibility to protect the interests of the infant.
The petition requests Court approval of a one-third (1/3) legal fee as agreed to by the petitioner in the retainer agreement he signed. The Surrogate's Court has a responsibility to review attorney's fees, even though no party objects to them, particularly where infants are beneficiaries or distributees. The retainer agreement with counsel is not binding upon the Court, nor on the minor distributees. Matter of Kaiser , 198 Misc 592 (Sur Ct, Kings County 1950); Matter of Lanyi , 147 AD2d, 644 (2d Dept 1989) ; Est. of Haag , 55 Misc 3d 324, (Sur Ct, Broome County 2016). See also Judiciary Law § 474. The Court also notes that the retainer agreement between counsel and petitioner is dated July 26, 2017, the very day decedent died, and a year and a half before petitioner had any legal authority to retain counsel on behalf of the estate or distributees.
Surrogate's Courts across the State of New York have a long-standing practice of limiting contingency fees in matters involving infants to 25%, absent special circumstances. New York Estate Administration, Turano and Radigan, 2017 Edition, § 20.08; White v DaimlerChrysler Corp. , 57 AD3d 631 (2d Dept 2008) ; Matter of Hai , 25 Misc 3d 236 (Sur Ct, Kings Co 2009).
Prior to the return date on this petition, the Court advised petitioner's counsel of its own practice of limiting contingency fees with respect to infants to 25%. This should be no surprise to counsel, which holds itself out in media advertising across the state as broadly experienced in personal injury and death claims. Counsel submitted no affirmation to establish this case was exceptionally difficult or complex and required atypical time and effort; in fact no affirmation of services was submitted. Counsel did not even sue this case and incurred nominal disbursements.
This settlement is modest for decedent's two children, one a young adult and one a minor. In the Court's view a 25% fee with respect to the minor's share is appropriate. The one-third (1/3) legal fee negotiated by petitioner is deemed binding upon him, with respect to his share.
The Court's practice of limiting contingency fees with infant beneficiaries is an exercise of its discretionary equitable powers. The Court limits the fee on the infant's share to 25%. The funeral fee, which is to be paid from the net settlement, will be allocated consistently with the shares of decedent's sons. The Court will enter a Decree in conformity with this Decision, which constitutes the Order of the Court.