Binder & Binder, P.C. v. Colvin
Decision Date | 28 October 2014 |
Docket Number | No. 14–CV–02752 JFB.,14–CV–02752 JFB. |
Citation | 55 F.Supp.3d 439 |
Parties | BINDER & BINDER, P.C., Plaintiff, v. Carolyn W. COLVIN, Commissioner of the Social Security Administration, Defendant. |
Court | U.S. District Court — Eastern District of New York |
Jeffrey Herzberg, Zinker & Herzberg, LLP, Hauppauge, NY, for Plaintiff.
Loretta E. Lynch, United States Attorney for the Eastern District of New York, Central Islip, NY, by Vincent Lipari, Assistant United States Attorney, for Defendant.
Plaintiff Binder & Binder, P.C. (“B & B” or “plaintiff”) successfully assisted Jay Scott Lerner (“Lerner”) in obtaining disability insurance benefits from the Social Security Administration (“SSA” or “defendant”). Although the SSA should have withheld $6,000.00 from Lerner's past-due benefits in order to pay B & B its attorney's fee, the SSA failed to do so. Lerner then filed for bankruptcy, which means that B & B cannot recover the $6,000.00 attorney's fee directly from Lerner.
In the instant case, B & B now seeks a judgment against the SSA in the amount of $6,000.00. B & B and the SSA have filed cross-motions for summary judgment. For the reasons that follow, the Court grants summary judgment in favor of the SSA on the basis of sovereign immunity.
The following facts are taken from the parties' depositions, declarations, exhibits, and respective Local Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to the nonmoving party. See, e.g., Capobianco v. City of New York, 422 F.3d 47, 50 n. 1 (2d Cir.2005). Unless otherwise noted, where a party's Rule 56.1 statement is cited, that fact is undisputed, or the opposing party has not pointed to any evidence in the record to contradict it.1
Lerner applied to the SSA for disability insurance benefits on May 3, 2012. (Def. 56.1 ¶ 1.) Lerner retained B & B to represent him, and he executed a fee agreement with B & B on June 29, 2012 (the “Fee Agreement”). (Pl. 56.1 ¶ 2; Def. 56.1 ¶ 3.) The Fee Agreement provided that if Lerner received a favorable decision on his application, he would pay B & B an attorney's fee amounting to the lesser of either (1) 25% of past due benefits awarded, or (2) $6,000.00, which at that time was the maximum amount set by the Commissioner pursuant to 42 U.S.C. § 406(a). (Pl. 56.1 ¶ 2; Def. 56.1 ¶ 3.) In a letter dated July 24, 2012, Mario Davila (“Davila”), a representative of B & B, informed the SSA that B & B was representing Lerner and enclosed a copy of the Fee Agreement. (Def. 56.1 ¶ 2.)
In a notice dated October 22, 2012, the SSA notified Lerner that his application for benefits had been approved, that he would receive $36,080.00 in past due benefits on or about October 28, 2012, and that he would receive $2,036.00 per month beginning in November 2012. (Pl. 56.1 ¶ 4; Def. 56.1 ¶ 4.)
In a subsequent notice dated February 17, 2013, the SSA advised Davila that he was not authorized to collect a fee for his representation of Lerner because he had failed to register for direct payment with the SSA before the SSA had adjudicated Lerner's benefits claim. (Def. 56.1 ¶ 5.) In a response on B & B's behalf, Davila informed the SSA that he had submitted the Fee Agreement and all other required documents to the SSA before the SSA had adjudicated Lerner's claim. (Id. ¶ 9.) On March 26, 2014, the SSA approved the Fee Agreement (id. ¶ 11), and by notice dated April 14, 2014, the SSA informed Davila that a fee of $6,000.00 was authorized for B & B's representation of Lerner. (Id. ¶ 13; Pl. 56.1 ¶ 6.)
In letters dated April 12 and April 14, 2014, the SSA informed Lerner that it should have withheld $6,000.00 from his past due benefits in order to pay B & B, but that it had “inadvertently released all past-due benefits to you; therefore the lawyer/representative will contact you for the payment of the approved fee of $6,000.00.” (Pl. 56.1 ¶ 7; Def. 56.1 ¶¶ 12, 14.) In addition, the SSA stated that if Lerner failed to pay B & B, then the SSA would withhold the amount of the attorney's fee from plaintiff's future benefit payments. (Pl. 56.1 ¶ 7; Def. 56.1 ¶¶ 12, 14.)
However, Lerner had filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of New York on October 17, 2013. (Pl. 56.1 ¶ 8; Def. 56.1 ¶ 6.) In Schedule F to his petition, Lerner listed B & B as an unsecured creditor, but failed to provide the proper address for B & B. (Pl. 56.1 ¶ 10; Def. 56.1 ¶ 7.) Accordingly, B & B did not object to the discharge of Lerner's debt to B & B (Pl. 56.1 ¶ 10), and the Bankruptcy Court ordered a discharge of Lerner's debts on January 29, 2014. (Def. 56.1 ¶ 10.)
On May 2, 2014—the same date that B & B filed the instant case—B & B moved in the Bankruptcy Court to reopen Lerner's bankruptcy proceeding so that B & B could object to the discharge of Lerner's debt to B & B. (Def. 56.1 ¶ 15.) The SSA first learned of Lerner's bankruptcy around this time. (See id. ¶ 17.) In a decision dated August 28, 2014, the Bankruptcy Court denied B & B's motion to reopen Lerner's bankruptcy proceeding, though the Bankruptcy Court did acknowledge that SSA had sent $6,000.00 to Lerner “in error.” (Id. ¶ 19.)
Plaintiff commenced this action on May 2, 2014. Defendant answered the complaint on July 2, 2014.
Plaintiff filed the pending motion for summary judgment on August 14, 2014. Defendant filed its opposition and cross-motion for summary judgment on September 18, 2014. Plaintiff filed its reply and opposition to the cross-motion on October 2, 2014. The Court heard oral argument on October 27, 2014. This matter is fully submitted, and the Court has fully considered the submissions of the parties.
The standard for summary judgment is well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(a) ; Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.2013). The moving party bears the burden of showing that he is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The court “ ‘is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.’ ” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996) ); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ( ).
Once the moving party has met its burden, the opposing party “ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (alteration and emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties alone will not defeat an otherwise properly supported motion for summary judgment.” Id. at 247–48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth “ ‘concrete particulars' ” showing that a trial is needed. R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978) ). Accordingly, it is insufficient for a party opposing summary judgment “ ‘merely to assert a conclusion without supplying supporting arguments or facts.’ ” BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585 F.2d at 33 ).
Where, as here, the parties have filed cross-motions for summary judgment, “the court must consider each motion independently of the other and when evaluating each, the court must consider the facts in the light most favorable to the nonmoving party.” Chartis Seguros Mexico, S.A. de C.V. v. HLI Rail & Rigging, LLC, 3 F.Supp.3d 171, 179 (S.D.N.Y.2014) (citing Sciascia v. Rochdale Village, Inc., 851 F.Supp.2d 460 (E.D.N.Y.2012) ).
“Under the Social Security Act, ‘whenever the [SSA], in any claim before the [SSA] for benefits ... makes a determination favorable to the claimant, the [SSA] shall ... fix ... a reasonable fee to compensate such attorney for the services performed by him in connection with [the awarded] claim [for benefits],’ or approve or modify a pre-existing fee agreement between the claimant and her attorney.” Binder & Binder PC v. Barnhart, 481 F.3d 141, 150 (2d Cir.2007) [hereinaf...
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Binder & Binder, P.C. v. Colvin
...the fees, the district courts below granted summary judgment to the SSA on the basis of sovereign immunity. Binder & Binder, P.C. v. Colvin, 55 F.Supp.3d 439, 446 (E.D.N.Y.2014) ; Binder & Binder, P.C. v. Colvin, No. 13 CV 432 DRH, 2014 WL 6632713, at *6 (E.D.N.Y. Nov. 21, 2014). Both court......