Baron and Vesel, P.C. v. Gammerman

• Decision Date: 15 May 1984
• Citation: 101 A.D.2d 763,475 N.Y.S.2d 408
• Parties: In re Application of BARON AND VESEL, P.C., attorneys for the Estate of Erma Fuller, et al., Petitioners, For an Order etc., v. Hon. Ira GAMMERMAN, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 408

475 N.Y.S.2d 408

101 A.D.2d 763

In re Application of BARON AND VESEL, P.C., attorneys for the Estate of Erma Fuller, et al., Petitioners For an Order etc., v. Hon. Ira GAMMERMAN, etc., et al., Respondents.

Supreme Court, Appellate Division First Department.

May 15, 1984.

Baron & Vesel, P.C., Forest Hills, for petitioners.

D. Sticklor, H.J. Bergman, New York City, for respondents.

Before KUPFERMAN, J.P., and SULLIVAN, SILVERMAN, MILONAS and KASSAL, JJ.

MEMORANDUM DECISION.

Article 78 proceeding in this Court seeking an order prohibiting respondent Supreme Court justice from entertaining any application to allocate and fix fees, allegedly owing to the Estate of Irving L. Weinberger, that have been fixed in Surrogate's Court, Queens County, is dismissed, and the application denied, without costs.

The proceeding involves a dispute as to allocation of attorneys' fees in a wrongful death action which was settled in the Supreme Court, New York County. Petitioners', attorneys of record, have been awarded a fee in the Surrogate's Court, Queens County, and now the estate of another attorney seeks in the Supreme Court an allocation of one-third of that fee to that attorney's estate. An application for allocation is apparently also pending in the Surrogate's Court, Queens County. Petitioners contend that a decision in the Supreme Court would, based upon the facts in this case, exceed the jurisdiction of the Supreme Court.

The case does not justify the drastic remedy of prohibition. Without prejudging the issue of jurisdiction of the Supreme Court, even if the Supreme Court is without jurisdiction there is no reason to believe that the Supreme Court justice will make an erroneous ruling, nor is there any reason to avoid the more orderly procedure of making the objection to jurisdiction in the Supreme Court. The fact that the Supreme Court justice signed an order to show cause is no indication whatever as to what his ruling will be on jurisdiction. The Trial Term of the Supreme Court, like any other court, has at least the jurisdiction to decide whether it has jurisdiction in a particular matter. Thus petitioners "had [and has] an adequate remedy to contest the separable issues of jurisdiction" before the Trial Term. Matter of Lownes v. Family Court, 24 A.D.2d 443, 260 N.Y.S.2d 924. Whichever way the Trial Term decides, there is an adequate remedy by appeal. Id.

All concur except KASSAL, J., who dissents in a memorandum as follows:

I disagree and would grant the petition to prohibit the Supreme Court Justice from passing upon the application presently pending before him to modify and amend the decree of the Surrogate's Court, Queens County, entered November 15, 1983. In my view, prohibition is available here to prevent the improper exercise of jurisdiction.

The underlying dispute concerns the claims by counsel as to their respective entitlement to and division of legal fees resulting from the settlement of a negligence action to recover damages for the wrongful death and conscious pain and suffering of Erma Fuller. This action had been settled during trial before Justice Gammerman in Supreme Court, New York County. Petitioners had been retained as trial counsel by the attorney of record, Irving Weinberger, on March 24, 1976. Weinberger had been originally retained by Mrs. Fuller on February 19, 1976, by a written retainer agreement which provided for a fee to be determined pursuant to NYCRR § 603.7(e). When petitioners were retained, the parties agreed to a contingent 1/3 fee, with petitioners agreeing to share the total fee with Weinberger on a 2/3-- 1/3 basis. A retainer statement to that effect was filed with the Judicial Conference. Subsequently, Weinberger passed away on November 15, 1976 and Mrs. Fuller died on January 9, 1979, whereupon the personal injury action was converted into an action for wrongful death.

The action came on for trial before Justice Gammerman in Supreme Court and was settled during trial by a structured settlement agreement in the aggregate sum of $950,000, with $100,000 to be allocated to the claim for conscious pain and suffering. At that time, the court instructed the parties to submit compromise papers for approval of the settlement and distribution of the proceeds in the Surrogate's Court, Queens County, advising that: "If the Queens County Surrogate indicates that he has no particular desire to have this matter dealt with in this Court, I have advised Counsel for the Plaintiff that I will entertain the compromise in this Court." Thereafter, petitioners brought a proceeding in the Surrogate's Court, Queens County, to approve the settlement and determine reasonable counsel fees to be paid. As far as appears, that proceeding was not on notice to Weinberger's estate and there was no request to apportion the fee between the attorneys. Following the filing of a report by the guardian ad litem, appointed on behalf of the infant son of Mrs. Fuller, Surrogate Laurino issued a decree on November 15, 1983, inter alia, approving the settlement and awarding counsel fees to petitioners in the sum of $200,000, with no provision for Weinberger. According to Weinberger's widow, until the decree was issued, she was unaware that petitioners sought to exclude her husband's estate from the fee.

On January 23, 1984, petitioners moved, on notice to Weinberger's estate in the Surrogate's Court, Queens County, for an order awarding the attorneys' fees under the decree of November 15, 1983, solely to petitioners, alleging in support of the motion that Weinberger, their referring attorney, "did no work on the case" and citing the pertinent canon of ethics regarding division of fees. The record does not reflect whether Weinberger's estate opposed the motion but, in any event, on March 2, 1984, while the Queens application was sub judice, Weinberger's administratrix secured an order to show cause in Supreme Court, New York County, issued by Justice Gammerman, directing a hearing to determine why an order should not be entered (1) relieving Weinberger's estate from the "order and judgment previously entered in this case", which had awarded the entire fee to Baron & Vesel, (2) "amending said judgment to provide for the payment of one-third of said fee to said estate" and (3) awarding the estate exemplary damages. In opposing the motion, petitioners argued that the court should not entertain the application since, on settlement of the underlying action, Justice Gammerman had deferred the issues with respect to the compromise and approval of the settlement and fixation of fees to the Queens Surrogate pursuant to EPTL § 5-4.4(a)(1) and that a prior outstanding motion had been made in the Surrogate's Court to resolve the disputed issue concerning the fee. Subsequently, the motion was submitted and is presently pending before Justice Gammerman. As a result, there are two...