In re Proceeding by Davidson, 2022-22018

CourtNew York Surrogate Court
Writing for the CourtHON. KEITH J. CORNELL JUDGE
PartiesProceeding by Davidson, Sochor, Ragsdale & Cohen to Fix and Determine Compensation per SCPA § 2110 for work performed for the estate of Clifford J. Hart, Deceased.
Decision Date12 January 2022
Docket Number2022-22018,File 2014-753/B

Proceeding by Davidson, Sochor, Ragsdale & Cohen to Fix and Determine Compensation per SCPA § 2110 for work performed for the estate of Clifford J. Hart, Deceased.

No. 2022-22018

File No. 2014-753/B

Surrogate's Court, Rockland County

January 12, 2022

Martin Wm. Goldman, Esq. Attorney for Counterclaimants

Robert J. Bergson, Esq. Abrams Garfield Margolis Bergson, LLP Attorneys for Petitioner

John Walsh, Esq. Walsh & Walsh, Esqs. Attorneys for Petitioner


Before the Court is a motion by the Estate of Clifford Hart, Jake Hart, Alex Hart, and Naomi Hart (the "Counterclaimants") for partial summary judgment on the fee petition filed by Davidson, Sochor, Ragsdale & Cohen ("Petitioner") based on Petitioner's failure to comply with the 22 NYCRR § 137 mandatory fee dispute resolution procedures. Counterclaimants seek dismissal of the fee petition and severance of their malpractice counterclaims. Petitioner opposes the motion for partial summary judgment and separately moves to strike the Counterclaimants' answer with counterclaims as a sanction for failure to comply with discovery. The following papers were read in connection with the two motions:

1. Notice of Motion for Partial Summary Judgment, dated August 30, 2021/ Affirmation of Martin WM. Goldman, Esq. in support, dated August 21, 2021, with Exhibits 1-4
2. Affirmation in Opposition of John K. Walsh, Jr., Esq dated September 3, 2021, with Exhibits A-E
3. Reply Affirmation of Martin WM. Goldman, Esq. in further support, dated September 10, 2021.
4. Notice of Motion to Renew dated September 3, 2021/ Affirmation of Robert J. Bergson, Esq., in support, dated September 3, 2021, with Exhibits A-C;
5. Affirmation in Opposition of Martin WM. Goldman, Esq., dated September 19, 2021, with Exhibits 1-2;
6. Reply Affirmation of Robert J. Bergson, Esq., in further support, dated September 27, 2021


Decedent Clifford Hart passed away on November 14, 2014. Mr. Davidson, Decedent's long-time attorney and drafter of Decedent's will, and Mr. Davidson's firm, Davidson, Sochor, Ragsdale & Cohen ("Petitioner") began performing work on behalf of the Estate on November 24, 2014. Mr. Davidson alleges that attorney Martin Goldman reached out to him on November 25, 2014 on behalf of Alex and Jake, Decedent's sons (and Mr. Goldman's godsons). Mr. Davidson alleges that he and Mr. Goldman communicated frequently in December, January, and February about the Estate. On December 10, 2014, Gregory H. Cayne, Esq., a member of Davidson, Sochor, Ragsdale & Cohen, filed a petition as attorney for Jake Hart seeking Letters of Administration c.t.a. and seeking admission of Decedent's Last Will and Testament to probate. The Will was admitted to probate by decree on January 28, 2015 and Letters of Administration c.t.a. issued to Jake Hart on the same date. Petitioner allegedly provided Jake with a retainer agreement for him to sign in his capacity as Administrator, but Jake did not sign or return it. Allegedly, in late February, Mr. Davidson was informed by Mr. Goldman that he had instructed Jake not to pay the firm's invoices.

On June 1, 2015, the instant proceeding was initiated by Petitioner seeking the fixing and determination of fees pursuant to SCPA § 2110. Petitioner sought fees of $26, 532.50 and disbursements of $984.50 for services rendered from November 14, 2014 through February 26, 2015. On October 26, 2015, the Estate, Jake Hart, Alex Hart, and Naomi Hart [1] filed an answer with affirmative defenses and counterclaims of malpractice in response to the fee petition. The Estate and the three individuals are represented by Mr. Goldman.

On September 16, 2016, the Estate filed a motion for summary judgment in which it argued that the failure of Petitioner to maintain an office in New York in violation of Judiciary Law §470 disqualified Petitioner from being compensated for the legal work done from November 2014 through February 2015. Counterclaimants also sought to have the malpractice counterclaim severed from the fee petition. This Court denied both the motion for summary judgment and the motion to sever the counterclaim. See In re Clifford Hart, File No. 2014-735/B (Surr. Ct. Rockland Co. April 6, 2017). Counterclaimants moved to reargue, which motion was granted, but the Court adhered to its original determination and declined to grant summary judgment in Counterclaimants' favor or sever the counterclaim. See In re Clifford Hart, File No. 2014-735/B (Surr. Ct. Rockland Co. August 28, 2017). Both decisions were appealed. Both decisions were affirmed. See In re Clifford Hart, 194 A.D.3d 931 (2d Dept. 2021).

Counterclaimants now return with another attempt to dismiss the petition based on a different theory. Counterclaimants argue that as a matter of law they are entitled to dismissal of the fee petition because Petitioner did not serve them with notice of their right to arbitrate a fee dispute per 22 NYCRR § 137.6 (a)(1). In response, Petitioner argues that SCPA § 2110 "Compensation of Attorneys" and the associated rule at 22 NYCRR § 207.45 are the governing statutes for this petition, rather than the mandatory arbitration rule found at 22 NYCRR § 137.0 et seq. Petitioner argues that this second summary judgment motion is improper, as successive summary judgment motions are disfavored. Petitioner also argues that this ground for dismissal cannot be considered because it was not alleged in the amended answer with counterclaims filed on April 26, 2016. Counterclaimants reply that this Court lacks subject matter jurisdiction over the petition because the mandatory arbitration notice was never served.

Separately, Petitioner seeks to renew its request to strike Counterclaimants' Amended Answer with Counterclaims. Petitioner argues that Counterclaimants have failed to pay the sanction ordered by this Court on August 3, 2021 and failed to comply with the discovery ordered in the May 5, 2021 decision. Petitioner seeks attorneys' fees associated with bringing this application.

In response to the motion to renew, Counterclaimants restate the substance of their summary judgment motion, primarily arguing that this Court lacks jurisdiction over the controversy. Counterclaimants do not claim to have complied with the sanction order or the outstanding discovery order. Mr. Goldman "vigorously rejects" the accusation that he is guilty of contumacious misconduct. Counterclaimants raise a previously rejected argument that they need not comply with discovery because they did not approve of the organization of Petitioner's document production. In reply, Petitioner notes Counterclaimants do not deny that they have not paid the sanction imposed by the Court or produced documents or a privilege log as directed by this Court. Petitioner argues that striking the Answer with Counterclaims is the only way for the Court to maintain the integrity of the litigation process.


I. Motion for Summary Judgment for Failure to Comply with Part 137

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to eliminate any material issues of fact from the case. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957). The movant bears the burden of proving entitlement to summary judgment, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985). Once sufficient proof has been offered, the burden then shifts to the opposing party who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form that raises a triable issue of fact. See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).

Here, Counterclaimants allege that Petitioner failed to comply with the notice provisions of 22 NYCRR § 137, which divests the Court of jurisdiction and requires dismissal of the fee petition. In the initial petition filed in this matter on December 10, 2014, the proposed engagement letter was attached as Exhibit D to the attorney affirmation. The "Agreement to Provide Legal Services" does not include the required Part 137 language. The answer with counterclaims does not specifically raise the failure to include Part 137 language in the proposed engagement letter as an affirmative defense or objection. Instead, in the first objection and point of law, the Counterclaimants allege that "Petitioner, admittedly a New Jersey law firm, is not authorized to practice law in New York State and failed to meet its responsibility to obtain from the Estate and/or administrator either a written retainer agreement and/or a letter of engagement as it was required to by NYCRR § 1215.1." Amended Verified Answer, Affirmative Defenses, and Respondents' Counterclaims to Petition at ¶6. The same issue is raised as the first affirmative defense. See id. ¶7. The second affirmative defense also cites the failure to obtain a letter of engagement in violation of NYCRR § 1215.1 and argues that Petitioner may only recover (if at all) on the basis of quantum meruit. The answer does not raise the issue that is the focus of this motion, the failure to provide the notice required by 22 NYCRR § 137.6(a)(1).

Petitioner does not claim that the Part 137 notice was sent. Instead, Petitioner argues that the Part 137 arbitration rules do not apply in this case because the Surrogate's Court Procedure Act provides an alternate process per SCPA §2110. Therefore, there is no dispute on the one fact issue raised by Counterclaimant in the motion (whether the notice was sent), making it appropriate for a ruling on summary judgment.

A. History of SCPA § 2110

Warren's Heaton on Surrogate's Practice reviews the history of the Surrogate's authority to fix attorney's...

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