In re the Estate of Rowland

28 Misc. 3d 417
CourtNew York Surrogate's Court
DecidedMay 14, 2010
StatusPublished

This text of 28 Misc. 3d 417 (In re the Estate of Rowland) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Estate of Rowland, 28 Misc. 3d 417 (N.Y. Super. Ct. 2010).

Opinion

OPINION OF THE COURT

Lee L. Holzman, J.

[418]*418In this proceeding to judicially account for a $50,000 wrongful death action settlement, the only issue presented is whether the objectant, who represented the administratrix in the underlying wrongful death action (this case) prior to his disbarment, is entitled to any compensation for the legal services that he rendered before the law firm presently representing the administratrix (the law firm) became the plaintiffs counsel. A bench trial was held.

The law firm concedes that when it agreed to be substituted as counsel in place of the objectant in this case and others, it also agreed to pay one third of the legal fee it received in this case to the objectant. Although the law firm does not assert that the objectant’s representation of the administratrix in this case was an issue in his disbarment proceeding, it contends that the objectant was guilty of the following transgressions in this case: (1) he failed to prosecute the case in a timely manner or to conduct any meaningful pretrial discovery; (2) he filed misleading and inaccurate papers in the Supreme Court, Queens County; and (3) he misrepresented to the law firm at the time of their agreement that this case was scheduled for an inquest hearing.

The law firm decided that in light of the inordinate delays in the prosecution of this case and the objectant’s failure to pursue meaningful disclosure devices, it would not be appropriate for either its firm or the objectant to receive any legal fee. Consequently, in the accounting proceeding, the law firm and the administratrix took the position that no legal fee should be paid to any attorney based upon the objectant’s conduct in representing the administratrix in this case, and the law firm requested reimbursement only of disbursements.

The objectant argues that the law firm might be able to waive its portion of the legal fee but it has no right to waive his portion of the fee. Accordingly, the objectant argues that either he should receive one third of the amount that should have been awarded to the law firm pursuant to its one-third contingent fee retainer agreement with the administratrix, or he should receive 95% of that amount on a quantum meruit basis because the law firm breached its agreement with him by failing to pay his one-third share. The objectant asserts that there is no basis to deny him compensation in light of the valuable services he rendered. The court entered an interim decree providing that a sum sufficient to pay the maximum amount claimed by the objectant be held in escrow and directing distribution of the balance of the settlement proceeds as requested.

[419]*419The evidence adduced at the hearing reveals that most of the facts are not in dispute. The decedent died on January 5, 1993, as a result of injuries he sustained when a stolen automobile, while fleeing from the police, crashed into the decedent’s vehicle. The decedent’s sole distributee, his son, was then two years of age. The infant’s mother retained the objectant two days after the decedent’s death. The objectant filed a notice of claim with the City of New York in 1993 and the complaint against, inter alia, the City of New York and the New York City Police Department was filed in the Supreme Court, Queens County, on April 27, 1994.

This case progressed at a snail’s pace thereafter. The object-ant prepared a demand for “discovery and inspection” dated July 14, 1995. When the defendants failed to respond to the demand, the objectant filed a motion to strike the defendants’ pleadings. This application was originally denied; however, on June 2, 1997 the Appellate Division, Second Department, reversed and conditionally granted the motion to strike, holding that the “answer of the defendants . . . shall be stricken unless, within 30 days after service of a copy of this order . . . they serve a response” (Ashley v City of New York, 240 AD2d 352, 352 [1997]).

It appears that, thereafter, the defendants complied with some of the requested disclosure but took the position that the balance of the request was not proper. In any event, it was not until five years after the June 2, 1997 order of the Appellate Division, Second Department, that the objectant served a motion seeking, inter alia, to strike the defendants’ answer for failure to comply with the June 2, 1997 order and the defendants cross-moved, inter alia, for an order of preclusion based upon the plaintiffs failure to prosecute the action and for a protective order with regard to some of the discovery documents demanded. In a decision and order dated December 18, 2002, Justice Phyllis Plug, of the Supreme Court, Queens County, denied the motion and cross motion, and directed that a note of issue be filed immediately and that all disclosure be completed within 30 days thereafter. It is apparent that the objectant failed to comply with this order as the objectant prepared an application returnable on April 19, 2005 to have the case restored to the trial calendar. Thereafter, based upon the objectant’s affirmation dated January 17, 2006, the plaintiff once again moved to strike the defendants’ answer for their purported failure to comply with the June 2, 1997 order of the Appellate Division, [420]*420Second Department. Notwithstanding that the objectant withdrew this last motion, on March 21, 2006, he filed a “Notice for Trial” setting the matter down for “Damages Only” as “Defendants’ answer is Stricken.”

The law firm replaced the objectant as the attorney for the plaintiff in August 2006. The parties agree about the events leading up to the substitution of counsel. Specifically, the law firm and the objectant entered into negotiations for the sale of the objectant’s law practice. The objectant told the law firm that he was retiring to Florida due to his wife’s poor health. The law firm did not ask and the objectant did not- volunteer that he had tendered his resignation as an attorney in an affidavit dated May 18, 2006, in which he indicated that he was aware both that he was barred from seeking reinstatement for at least seven years and that he was under investigation for his submission of false and misleading answers and documents that were altered in connection with two pending complaints of professional misconduct (see Matter of Finkelstein, 39 AD3d 120 [2007]). In fact, the objectant was disbarred on February 13, 2007 (id.). In any event, while the disbarment proceedings were in progress, the law firm and the objectant entered into a written agreement on August 29, 2006 relating to this and over 30 other cases. With regard to this case, the agreement specifically stated that “an inquest is pending” and that the objectant “will receive 331/s% of the attorney’s fee for work already performed.”

The partner who testified on behalf of the law firm stated that the law firm would not have entered into the agreement with the objectant had the partners known that the objectant was on the brink of disbarment. More importantly, with regard to this case, the law firm agreed to pay the objectant one-third, rather than a smaller percentage, based on the objectant’s representation that all that remained to be done was to establish damages at an inquest hearing. Thereafter, the law firm ascertained that an inquest hearing could not be conducted because the “Notice for Trial” filed with the Clerk’s Office falsely stated that the defendants’ answer was stricken. Moreover, the law firm discovered that the objectant neglected this case in the more than 13-year period that he represented the-plaintiff.

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Bluebook (online)
28 Misc. 3d 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-rowland-nysurct-2010.