Opinion
2017-4734/A
03-04-2021
In the MATTER OF the Application of Latchmin PERSAUD, as Administrator of the Goods, Chattels and Credits Which Were of Joshua J. Persaud, File No. 2017-4734/A Deceased
Desiree Lovell Fusco, Esq., Bondi Iovino & Fusco, Attorneys for Petitioner, Latchmin Persaud Cellino Law LLP., Attorneys for Petitioner, Latchmin Persaud John M. Tomsky, Esq., Guardian ad Litem
Desiree Lovell Fusco, Esq., Bondi Iovino & Fusco, Attorneys for Petitioner, Latchmin Persaud
Cellino Law LLP., Attorneys for Petitioner, Latchmin Persaud
John M. Tomsky, Esq., Guardian ad Litem
Peter J. Kelly, J.
On August 14, 2016, the decedent, while driving his motorcycle on the Thompson Avenue ramp of the Queensborough Bridge, was struck by a vehicle, slid across metal plates covering the east and westbound sides of traffic, and fell between a gap in those plates, plummeting approximately 31 feet to the ground below the roadway. He was transferred to Cornell Hospital where he was pronounced dead on arrival. Decedent's 3 year-old infant daughter was his sole distributee.
Four days subsequent to decedent's death, petitioner (decedent's mother) entered into a one-third contingency fee retainer agreement with the law firm of Cellino & Barnes. On August 3, 2017, with the consent of the natural mother, petitioner obtained letters of guardianship for the property of decedent's infant daughter. Eventually, in March of 2018, limited letters of administration were awarded to decedent's mother, for the purpose of pursing an action for negligence and wrongful death on behalf of the estate.
According to the affirmation of Allan Silverstein, an associate of Cellino Law , an investigation was undertaken by the firm and "intense negotiations" were undertaken with Allstate Insurance Company, concluding with the insurer tendering its policy limits of $50,000.00.
Cellino Law is the substituted counsel of record.
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Initially petitioner sought to allocate all of the settlement proceeds to conscious pain and suffering; reimbursement of $12,888.75 for decedent's funeral bill; payment to her of commissions of $2,500.00; payment of a claim in the reduced sum of $875.00; and payment to Cellino Law of $16,666.66 plus $780.00 in disbursements.
In his interim report, the guardian ad litem for the infant distributee, an experienced litigator from a highly respected personal injury firm, observed that allocating all of the proceeds to the cause of action for conscious pain and suffering was neither supported by the facts presented nor beneficial to his ward.
Damages awarded for conscious pain and suffering are considered estate assets, subject to the debts of the decedent, whereas damages for wrongful death are exclusively for the benefit of the decedent's distributees ( see ( EPTL 5-4.4[a] ); see e.g., Stuber v McEntee , 142 N.Y. 200, 36 N.E. 878 [1894] ; Matter of Maynard , 37 Misc 2d 184, 234 N.Y.S.2d 282 [Surr Ct New York County 1962] ). Additionally, the proposed allocation increased administrative expenses by mandating commissions to the petitioner based upon the gross estate, further reducing the infant's already nominal share, and subjecting the estate to creditor's claims ( SCPA 2307 ; EPTL 5-4.4[b] ).
The guardian ad litem also took issue with the payment to Cellino Law of a full one-third contingency fee, given the fact that this matter was settled prior to litigation being instituted and that the policy limits that were tendered were minimal.
Given the above, the court held several preliminary conferences, as a result of which petitioner consented to amend her request for relief to allocate the entirety of the proceeds to wrongful death and agreed to waive commissions. However, a resolution regarding the amount of attorney's fees payable to Cellino Law was not reached and the issue was submitted to the court for resolution.
In view of the sparse information provided with respect to their services, counsel was granted leave to submit a supplemental affirmation in support of this branch of the relief.
The court bears the ultimate responsibility for fixing and determining the compensation of an attorney for services rendered to a fiduciary ( see SCPA 2110 ; Matter of Storteky, 85 N.Y.2d 518, 626 N.Y.S.2d 733, 650 N.E.2d 391 [1995] ; Matter of Vitole , 215 A.D.2d 765, 627 N.Y.S.2d 444 [2d Dept 1995] ; Matter of Phelan , 173 A.D.2d 621, 570 N.Y.S.2d 202 [2d Dept 1991] ). In so doing, courts will evaluate a number of factors and, without necessarily placing more emphasis on any one factor over another, weigh the various considerations to arrive at a just conclusion.
As set forth consistently in the vast decisional law on this topic, courts will consider: time spent ( Matter of Kelly , 187 A.D.2d 718, 590 N.Y.S.2d 289 [2d Dept 1992] ); complexities of the tasks involved ( Matter of Coughlin , 221 A.D.2d 676, 633 N.Y.S.2d 610 [3d Dept 1995] ); customary fee charged by the Bar for similar services ( Matter of Potts , 123 Misc. 346, 205 N.Y.S. 797 [Sur Ct, Columbia County 1924] ); lawyer's experience and reputation ( Matter of Brehm's Estate , 37 A.D.2d 95, 322 N.Y.S.2d 287 [4th Dept 1971] ); nature of the services provided ( Matter of Van Hofe , 145 A.D.2d 424, 535 N.Y.S.2d 391 [2d Dept 1988] ); amount of litigation required ( Matter of Sabatino , 66 A.D.2d 937, 411 N.Y.S.2d 439 [3d Dept 1978] ); and the size of the estate ( Matter of Kaufman , 26 A.D.2d 818, 273 N.Y.S.2d 902 [1st Dept 1966] ).
Many of the above factors have not been squarely addressed. No contemporaneous time sheets have been provided by Cellino Law setting forth the time spent on the file and describing the nature of the services provided. While this could be expected as the retainer provides for contingency and not an hourly fee computation, counsel merely presented a general statement that their services consisted of investigation, obtaining medical records, negotiating with the insurance carrier, and "retaining" outside counsel to obtain letters of administration and prepare the within proceeding.
Although investigative services are referenced as a basis for awarding a full one-third of the recovery, the court observes that counsel, in fact, hired an outside provider to conduct an investigation of this matter for which $455.00 is sought as a separate disbursement. Neither counsel's initial affirmation, nor his supplemental affirmation in support of the legal fees requested sets forth what, if any, investigative services were undertaken by the professionals at his firm that are distinct from those rendered by an outside provider and billed out as a separate disbursement.
The balance of the described legal services consist of administrative or ministerial tasks for which little to no detail is provided.
Notwithstanding the name-recognition enjoyed by the law firm of Cellino and Barnes, there is no information from which to identify the professionals or para-professionals of the firm that actually worked on the file. The record is bereft of any information from which to glean the levels of experience, reputation of the individuals involved, what rates they would appropriately command, and what specific talents they brought to bear to achieve these results. In fact, based on the court's own years of experience with personal injury litigation, it does not appear that any special expertise would have been needed to obtain these policy limits given the liability and injuries presented at bar.
When distilled down to its essence, the legal services provided by Cellino Law consisted of negotiations with a claims adjuster. Counsel's lone description of the negotiations as "intense" in the absence of any other information, is patently subjective and insufficient. Given the facts of the case, it appears a question potentially existed as to whether decedent's injuries could have been caused, in part, by the gap between the temporary metal plates covering the roadway through which the decedent fell from the bridge to the road below. No information was provided regarding how thoroughly counsel investigated liability on this theory.
The record is devoid of proof that any depositions were conducted. There were no preliminary or pre-trial conferences held. The matter never appeared on a trial calendar. Nor was it even put in suit. Further, an affidavit regarding excess coverage was not even provided until requested by this court.
Also troubling is the fact that the copy of the retainer submitted to the court is dated August 18, 2016, just four days after decedent's death and prior to petitioner being appointed either guardian for the infant or administrator of the estate. Consequently, petitioner had no authority to bind the estate or the infant to this contract ( EPTL 5-4.1 ). Incongruously, the affidavit submitted in support of the petition indicates the operative retainer filed with OCA was dated March of 2016 - an impossibility since the accident did not even occur until August of that year. While a consent to change attorneys from Cellino & Barnes to Cellino Law dated November 30, 2020 was submitted to the Court, no other documents regarding trial counsel have been submitted.
In contrast to the vague affirmation of personal injury counsel, the affirmation of services provided by estate counsel is more extensive. Estate counsel does not, however, request separate approval of their fees from this Court. Rather, they are relying on a separate fee arrangement in place with Cellino Law for their payment, the terms of which are not provided.
Keeping in mind that the services of separate estate counsel are payable from the legal fees awarded to Cellino Law, the court will consider those services in fixing the total fee ( see Matter of Quintero, 2000 NYLJ Lexis 2734 [Sur Ct, Queens County 2000]; Matter of Daniels, 2014 NYLJ Lexis 4456 [Sur Ct, Bronx County 2014]).
Included in the affirmation are contemporaneous time records detailing the hours spent and describing the services performed to obtain letters of administration from this court, obtain letters of guardianship over decedent's infant daughter, and to commence the within compromise proceeding. Counsel approximates 9.5 attorney's hours and 32.6 law clerk hours were expended on these three proceedings, noting that she currently bills for her services at an hourly rate of $475.00 and her law clerks at $220.00.
The court allows that estate counsel is a well-regarded and experienced estate practitioner whose services, in the appropriate circumstances, can command the rates set forth. However, the court finds that the rates generally charged by counsel's law firm do not serve as a reasonable frame of reference for valuing much of the services provided in this nominal estate, which include an uncontested administration proceeding, unopposed guardianship proceeding, and the within compromise proceeding.
Indeed counsel's experience and sophistication in such matters should render the task of procuring letters of administration in an uncontested and uncomplicated estate a relatively simple process. It is not unusual for seasoned practitioners to undertake to perform such services at a flat rate, often no greater than $2,000.00, particularly where, as here, the estate is cash poor.
Similarly, obtaining letters of guardianship does not require a skill level above that of a lay person. In fact the overwhelming majority of the guardianship proceedings commenced in this court are filed and concluded by self-represented individuals. Counsel's preparation and filing of annual guardianship accountings on petitioner's behalf are arguably services that inure solely to the convenience and benefit of petitioner and not the estate or the infant. Additionally, the petitioner could have easily filed the annual guardianship accountings herself given the fact that no assets were ever deposited in her ward's account.
The court does acknowledges that the within compromise proceeding has been somewhat more complex and labor intensive, due, in part, to the concerns raised by the guardian ad litem, the need for court conferencing, the request for supplemental information, and trial counsel's stance.
In considering all of the relevant factors that have been brought to the court's attention, the court approves legal fees to the law firm of Cellino Law in the total sum of $10,000.00. Estate counsel's fees shall be paid from that award and shall include the preparation, execution, and entry of a decree herein.
Disbursements are approved in the amount requested.
The guardian ad litem has waived any award of legal fees to which he would be entitled for services rendered to his ward.
On consent, the sum of $12,888.75 shall be paid to Latchmin Persaud as reimbursement of decedent's funeral expenses.
Commissions are waived.
The claim of $875.00 of Aries Capital Partners, Inc. is disallowed ( Matter of Buscemi , 32 A.D.3d 1021, 822 N.Y.S.2d 109 [2d Dept 2006] ).
The net proceeds of the settlement are allocated to the cause of action for wrongful death and are distributable to the decedent's infant daughter. All proceeds shall be made payable to the guardian of the infant's property jointly with the guardianship clerk of the court. Said funds shall be deposited subject to further order of the court.
The guardian ad litem herein shall file a supplemental report within 45 days from the date of the decree to be entered hereon showing whether the decree has been complied with insofar as it affects his ward.
The filing of a bond is dispensed with.
Settle decree.