Fair v. United States of America et al
ORDER re 13 MOTION for Attorney Fees filed by Diane Fair: For the reasons set forth in the attached Memorandum and Order, the Court grants Plaintiff's request for attorneys' fees in the amount of $87,396.60, and costs in the amount of $413.59. Ordered by Judge Margo K. Brodie on 6/23/2014. (Bewaji, Omolara)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------DIANE FAIR, AS ADMINISTRATOR OF THE
ESTATE OF JEREL FAIR, DECEASED, AND
DIANE FAIR, INDIVIDUALLY,
MEMORANDUM & ORDER
UNITED STATES OF AMERICA and
U.S. DEPARTMENT OF VETERAN AFFAIRS,
---------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Diane Fair filed the above-captioned action against Defendants United States of
America and the United States Department of Veteran Affairs for violation of the Federal Tort
Claims Act (“FTCA”), alleging damages for wrongful death and conscious pain and suffering of
Plaintiff’s decedent in connection with medical treatment rendered by the Department of Veteran
Affairs. In December 2013, the parties entered into a settlement agreement awarding Plaintiff
$350,000.00. (Pl. Mot. for Att’ys. Fees (Docket Entry No. 13).) Plaintiff subsequently moved
for attorneys’ fees and costs. (Pl. Mot. for Att’ys. Fees; Att’y. Aff. (Docket Entry No. 16);
Supplemental Aff. (Docket Entry No 17).) Defendants have not opposed Plaintiff’s motion and,
according to Plaintiff, Defendants “take no position” on Plaintiff’s application for attorneys’
fees and costs. (Letter dated Dec. 23, 2013 (Docket Entry No. 14).) Having reviewed Plaintiff’s
application, for the reasons set forth below, the Court awards Plaintiff $87,396.60 in attorneys’
fees and $413.59 in costs.
Plaintiff seeks a total of $88,747.69 in attorneys’ fees and costs. (Att’y. Aff. 3.)1
Plaintiff seeks $1,663.59 for costs and expenses which include $1,250 for Surrogate’s Court
fees,2 $11.25 for medical records, $350 for federal court fees and $52.34 for service of process.
(Id. at 2.)
Under the retainer agreement between Plaintiff and her attorney, attorneys’ fees are paid
on a contingency basis and are calculated based on a percentage of Plaintiff’s successful
recovery in this action. (Supplemental Aff. at 1.) Plaintiff’s counsel acknowledges however,
that attorneys’ fees in a FTCA action cannot exceed 25 percent of the amount recovered after
deductions for costs and expenses. (Att’y. Aff. at 3.) As the fees under the retainer agreement
would otherwise exceed the amount allowed under the FTCA, Plaintiff’s counsel requests the
full amount allowed under the FTCA — 25 percent of $348,336.41, the amount recovered
($350,000) less the claimed costs ($1,663.59). (Id.)
a. Standard of Review
Rule 83.2(b)(2) of the Local Civil Rules for the Southern and Eastern District Courts of
New York grants the Court authority to review and approve attorneys’ fee in settlements of
The Court notes that there is some inconsistency in the amount requested. In Plaintiff’s
initial request for costs and fees, counsel requested a total of $88,312.69. (Pl. Mot. for Att’ys.
Fees at ECF 1.) In the Attorney Affidavit submitted in further support of Plaintiff’s motion,
Plaintiff requested a total of $88,747.69. (Att’y. Aff. 3.) It appears that this inconsistency is due
to a discrepancy between the costs requested in Plaintiff’s first and second requests. (Compare
Pl. Mot. for Att’ys. Fees (requesting $1,083.59 in costs), with Att’y. Aff. (requesting $1,663.59
Plaintiff states that the Surrogate Court fees are based upon the recovery of
$350,000.00. (Att’y. Aff. at 2.)
wrongful death actions and actions for conscious pain and suffering of the decedent. Local Civ.
R. 83.2(b)(2). Such approval must be “in accordance with the provisions of the New York State
statutes and rules.” Id. Under New York law, in a wrongful death action a “court shall, after
inquiry into the merits of the action and the amount of damages proposed as a compromise either
disapprove the application or approve in writing a compromise for such amount as it shall
determine to be adequate including approval of attorneys’ fees and other payable expenses.”
N.Y. E.P.T.L. 5-4.6(a). In determining whether to grant approval, the court must determine
whether the requested amount is fair and reasonable. Pollicina v. Misericordia Hosp. Med. Ctr.,
82 N.Y.2d 332, 338 (1993); Hylton v. N.Y. Methodist Hosp., No. 08-CV-3965, 2010 WL
1688531, at *1 (E.D.N.Y. Mar. 30, 2010), report and recommendation adopted, No. 08-CV3965, 2010 WL 1688511 (E.D.N.Y. Apr. 27, 2010).
The Court finds Plaintiff’s request for reimbursement of $11.25 for medical records, $350
for federal court fees, and $52.34 for service of process to be reasonable. See Friedman v.
Sharinn & Lipshie, P.C., No. 12-CV-3452, 2013 WL 1873302, at *12 (E.D.N.Y. Mar. 28, 2013)
(awarding $436.24 in costs for filing fees, service of process fees, photocopying, postage, and
facsimles); see also Cordero v. The Collection Co., Inc., No. 10-CV-5960, 2012 WL 1118210, at
*3 (E.D.N.Y. Apr. 3, 2012) (awarding $410.00 for filing and service of process fees). The Court
grants these costs totaling $413.59. However, the Court denies Plaintiff’s request for
reimbursement of $1,250.00 for Surrogate Court fees. Counsel has not sufficiently explained
why this Court should award the cost for a surrogate court proceeding from the settlement funds
of the case filed in this Court.3
c. Attorneys’ Fees
Section 474-a of the Judiciary Law restricts an attorney’s contingent fee in a medical
malpractice action to “30 percent of the first $250,000 of the sum recovered; 25 percent of the
next $250,000 of the sum recovered; 20 percent of the next $500,000 of the sum recovered; 15
percent of the next $250,000 of the sum recovered; and 10 percent of any amount over
$1,250,000 of the sum recovered.” N.Y. Judiciary Law § 474-a. The fee “shall be computed on
the net sum recovered after deducting from the amount recovered expenses and disbursements
for expert testimony and investigative or other services properly chargeable to the enforcement
of the claim or prosecution of the action.” Id.
Attorneys’ fees for claims arising under the FTCA, such as those alleged in this action,
are further regulated pursuant to 28 U.S.C. § 2678. Section 2678 states that “[n]o attorney shall
charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any
judgment rendered pursuant to section 1346(b) of this title or any settlement made pursuant to
section 2677 of this title, or in excess of 20 per centum of any award, compromise, or settlement
made pursuant to section 2672 of this title.” 28 U.S.C. § 2678. As Plaintiff’s claim arises under
The Court notes that Plaintiff has failed to provide any evidence of the alleged cost. In
support of his application Plaintiff states that he “submitted an Application for Administration
Proceedings” to the Surrogate Court and “the Surrogate Court issued Letters of Limited
Administration appointing Plaintiff as Administrator.” (Att’y. Aff. at 1–2.) Plaintiff further
states that the fees imposed by the Surrogate Court were “[b]ased upon a recovery [for the estate]
of $350,000.00.” (Id. at 2). Under Section 2402(2) of the Surrogate Court Procedure Act, the
filing fee for commencing a proceeding for administration in intestacy is based “upon the gross
estate passing by intestacy as stated in the petition.” S.C.P.A. § 2402(2). The filing fee rate
applicable to an estate or subject matter valued at “$250,000 but under $500,000” is $625.00.
Id. at § 2402 (7).
Section 2677 of the FTCA, (see Stipulation and Order of Dismissal with Prejudice (Docket Entry
No. 12)), the attorneys’ fees in this action cannot exceed 25 percent of the settlement proceeds
after deductions for costs and expenses.
In light of Plaintiff’s retainer agreement providing for contingent attorneys’ fees and
pursuant to the statutory limitations under the FTCA and Section 474-a of the Judiciary Law, the
Court approves attorneys’ fees in the amount of $87,396.60. This amount represents 25 percent
of the settlement amount after a deduction of $413.59 for reasonable costs ($349,586.41).
For the foregoing reasons, the Court approves attorneys’ fees in the amount of
$87,396.60 and costs in the amount of $413.59.
MARGO K. BRODIE
United States District Judge
Dated: June 23, 2014
Brooklyn, New York
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?