Opinion
No. 2003–3659/B No. 2003–3659/C.
03-01-2016
In the Matter of the Application of WINGATE, RUSSOTTI, SHAPIRO & HALPERIN, LLP, for the Removal of Patricia Thomas as Administrator of the Estate of Lucia Perez, a/k/a Lucia D. Colunga Perez, Deceased.
Jason M. Rubin, Esq. Wingate, Russotti, Shapiro & Halperin, LLP, for Petitioner.
Jason M. Rubin, Esq. Wingate, Russotti, Shapiro & Halperin, LLP, for Petitioner.
PETER J. KELLY, S.
Petitioner seeks entertainment of this proceeding to revoke the Letters of Administration issued to Patricia Thomas, allegedly on the basis that respondent's failure to settle a malpractice cause of action commenced by decedent prior to his death requires such relief.
Initially, petitioner asserts it has standing to commence this proceeding as a creditor of the estate on the basis, presumably, that it is owed a legal fee for work it performed in prosecuting the malpractice action.
Specifically, Petitioner claims that although the underlying action was settled, the respondent has refused to effectuate the settlement to its, and the estate's, detriment. Yet the papers do not contain any proof that a settlement was arrived at.
In fact, what the papers do reveal is the exact opposite. They show an offer was made, respondent refused to accept same, and contain an assertion that the trial judge was persuaded by petitioner that this could be construed as a breach of her fiduciary duty. The papers then state “accordingly, we accepted the $150,000 settlement offer on behalf of the Estate.” This last statement is ludicrous.
First of all, a retainer statement is not attached to the papers so it has not been established counsel had the authority to even represent respondent or settle a case on her behalf, much less act as a de-facto fiduciary for the estate.
Secondly, an attorney can not settle a case absent authority from a client and the adherence to statutory requirements (see CPLR § 2104 ; Bonnette v. Long Island College Hospital 3N43d 281). Given the facts presented, petitioner can not be heard to claim it even had apparent authority to settle a case on respondent's behalf (Cf. Hallock v. State of NY, 64 N.Y.2d 224 (1984) ), and neither a written stipulation nor a transcript of an agreement which was placed on the record is attached as an exhibit.
Respondent was empowered to reject the proposed settlement if she considered the offer inadequate and to either try the case, or to discontinue same. Her decision in this regard is subject to any potential liability she thereafter may have to the estate's distributees in an accounting proceeding, a class which does not include petitioner.
Petitioner may certainly have a contractual claim against Ms. Thomas fordisbursements or other items predicated on its retainer but it is undeniably notentitled distributive share of the estate.
And, in any event, despite the opinion attributed to the learned trial judge, no proof is presented in the papers that liens and other items that admittedly had to be negotiated were, in fact, resolved and/or reduced, or that the estate would have received any other pecuniary benefit, so it is unclear on this evidence how respondent's refusal to settle can be deemed a breach of her fiduciary duty as a matter of law.
Petitioner chose to accept the case for litigation. Apparently it now wishes to settle and collect a fee, but respondent has chosen not to settle because she finds the terms presented unsatisfactory. Her actions may constitute a basis for a motion by petitioner to be relieved or to restore the case to the trial calendar. However, this court is not about to threaten the fiduciary with removal and coerce her to settle this matter simply so an insurance carrier can close its file and petitioner can collect a legal fee, especially as the petition and supporting papers do not establish the fiduciary's actions constitute a prima facie basis for removal (SCPA § 711 ).
Consequently, the petition is denied entertainment.
This is the decision and order of the court.