Argro et al v. Osborne et al

Filing 107

MEMORANDUM-DECISION & ORDER: It is Ordered that the # 105 Report and Recommendation is REJECTED and it is further ordered that the # 95 Motion for Attorney Fees is DENIED. It is Ordered that no charging lien exists in favor of Tatiana Neroni, and she has waived any right to recover attorney's fees as a portion of any award recovered by plaintiffs in a trial or settlement of this action. This civil rights action is Trial Ready and the Court will notify the parties of the new trial date and due date for pretrial papers. Signed by Senior Judge Norman A. Mordue on 4/13/2016. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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DARA ARGRO, CODY BESS AND
MYRNA HORSHINSKI ,
Plaintiffs,
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3:12-CV-910 (NAM/DEP)

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BETTE OSBORNE, Individually and as CHENANGO
COUNTY, NEW YORK COMMISSIONER OF SOCIAL
SERVICES; CRYSTAL CORNELL, in her individual
capacity and in her capacity as a Social Worker for the
Department of Social Services, Chenango County, New
York; LACE-ANN PORTER, in her individual capacity
and in her capacity as a Social Worker for the Department
of Social Services, Chenango County, New York; LINDA
SMITH, in her individual capacity and in her capacity as a
Social Worker for the Department of Social Services,
Chenango County, New York; DEB MUNYAN, in her
individual capacity and in her capacity as a Social Worker
for the Department of Social Services, Chenango County,
New York; JESSICA SMARSMACH, in her individual
capacity and in her capacity as a Social Worker for the
Department of Social Services, Chenango County, New
York; KATHY LaVOIE, in her individual capacity and in
her capacity as a Social Worker for the Department of Social
Services, Chenango County, New York; KELLY O’CONNOR,
in her individual capacity and in her capacity as a Social
Worker for the Department of Social Services, Chenango
County, New York; DET. MARSH of Norwich City Police
Department, Chenango County, New York, in his official and
individual capacities; JOHN DOE, Chenango County Social
Worker, in his individual and official capacities; JANE DOE,
#1 through JANE DOE#2, Chenango County Officers
and employees, to be determined in discovery,
Defendants.
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APPEARANCES:
Carroll Law Firm
Woodruff Lee Carroll, Esq.

Galleries of Syracuse, Second Floor
441 South Salina Street
Syracuse, New York 13202
Attorney for Plaintiffs
Levene, Gouldin Law Firm
Erin E. Donnelly, Esq., of counsel
P.O. Box F-1706
Binghamton, New York 13902-0106
Attorneys for County Defendants

Hon. Norman A. Mordue, Senior U.S. District Judge:
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MEMORANDUM-DECISION AND ORDER
This civil rights action under 42 U.S.C. § 1983 is trial-ready. The trial date has been
adjourned to enable settlement negotiations to take place and for resolution of the issue of
attorney’s fees for plaintiffs’ former counsel Tatiana Neroni. On November 18, 2015, Tatiana
Neroni was suspended from the practice of law before this Court by Order of Chief United States

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District Judge Glenn T. Suddaby, dated November 18, 2015. The suspension runs concurrently
with her two-year suspension from the practice of law before the Courts of the State of New
York, which commenced on November 13, 2015. On January 4, 2016, Woodruff Lee Carroll,
Esq., appeared in this case as counsel for plaintiffs.
On January 13, 2016, Attorney Carroll moved (Dkt. No. 95) to determine Tatiana

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Neroni’s attorney’s fees in this case. In support of the motion, Attorney Carroll affirms that “the
fees need to be fixed to settle the case.” Under New York State regulations, a suspended attorney
“may be compensated on a quantum meruit basis for legal services rendered and disbursements
incurred by him prior to the effective date of the ... suspension order[.]” 22 N.Y.C.R.R. §
603.13(b). The amount and manner of payment of such compensation and recoverable
disbursements are to be fixed by the court on the application of either the suspended attorney or

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the new attorney. Id. The attorney’s right to such compensation gives rise to a charging lien
attaching to the client’s recovery in the same case. See N.Y. Judicary Law § 475.
In opposition to the motion, Tatiana Neroni submitted an affirmation (Dkt. No. 101) to the
effect that Attorney Carroll has no authority to apply for attorney’s fees on her behalf; that she
refuses to state the basis of her fee arrangement with plaintiffs; that she asserts no charging lien
on any recovery and does not intend to do so; and that she does not want the Court to determine
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her attorney’s fees. She submitted no evidence of the nature and extent of the services rendered
or the time spent in representing plaintiffs prior to her suspension.1 She further stated that after
the case is resolved she will apply for legal fees from defendants under 42 U.S.C. § 1988(b)
(“section 1988(b)”) “so that the Plaintiffs do not have to pay a penny of my legal fees.” Under
section 1988(b), a court in its discretion “may allow the prevailing party [in a case under 42

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U.S.C. § 1983] ... a reasonable attorney’s fee as part of the costs.” The right to attorney’s fees
under section 1988(b) belongs to the party, not the attorney, and whether the attorney receives
some or all of a section 1988(b) attorney’s fee award depends on the contractual arrangement
between the party and the attorney.
Upon referral by this Court, United States Magistrate Judge David E. Peebles issued a
Report and Recommendation (Dkt. No. 105) recommending that this Court exercise its discretion

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to limit the extent of Tatiana Neroni’s charging lien to $15,000. Plaintiff’s attorney objects (Dkt.
No. 106). The Court adopts Magistrate Judge Peebles’ summary of the facts and applicable law,

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“Among the factors a court must consider in assessing the amount of a charging lien on a
quantum meruit basis are: (1) the difficulty of the matter; (2) the nature and extent of the services
rendered; (3) the time reasonably expended on those services; (4) the quality of performance by counsel;
(5) the qualifications of counsel; (6) the amount at issue; and (7) the result obtained (to the extent
known).” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 148 (2d Cir. 1998).

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and does not repeat them here.
Upon de novo review, this Court holds that no quantum meruit valuation of Tatiana
Neroni’s legal services should be made and no charging lien imposed. Rather, under all the
circumstances, Tatiana Neroni should be permitted to forego any right to a charging lien on
plaintiffs’ recovery, if any, from trial or settlement. This is what she wishes to do, as she makes
clear in her 46-page opposition to the motion. In any event, by failing to submit a fee application
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addressing the relevant factors, she has prevented the Court from fashioning an award. The Court
appreciates the efforts of Magistrate Judge Peebles to resolve this issue and facilitate settlement.
Nevertheless, under all the circumstances, the Court concludes that Tatiana Neroni has
purposefully waived any charging lien in this case and relinquished any right to seek an award of
attorney’s fees as a portion of any award recovered by plaintiffs in a trial or settlement of this

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action. This ruling does not affect any right by any party to seek an award of attorney’s fees
under 42 U.S.C. § 1988(b).
The Court will set a new trial date and due date for pretrial papers. There will be no
further adjournments; if the case it not settled, it will go to trial.
It is therefore
ORDERED that the Report and Recommendation (Dkt. No. 105) is rejected; and it is

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further
ORDERED that the motion (Dkt. No. 95) to fix Tatiana Neroni’s attorney’s fees is denied;
and it is further
ORDERED that no charging lien exists in favor of Tatiana Neroni, and she has waived
any right to recover attorney’s fees as a portion of any award recovered by plaintiffs in a trial or

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settlement of this action; and it is further
ORDERED that the Court will notify the parties of the new trial date and due date for
pretrial papers.
IT IS SO ORDERED.
April 13, 2016
Syracuse, New York

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