Matter of Spatola

• Court: New York Surrogate Court
• Citation: 763 N.Y.S.2d 463,196 Misc.2d 666
• Parties: In the Matter of the Estate of JAMIESON SPATOLA, Deceased.
• Decision Date: 29 July 2003

196 Misc.2d 666
763 N.Y.S.2d 463

In the Matter of the Estate of JAMIESON SPATOLA, Deceased.

July 29, 2003.

McMahon, Martine & Gallagher, New York City, for petitioner.

Barbara G. Billet, Albany, for New York State Tax Commission.

John P. Sipp, Staten Island, guardian ad litem.

Sgarlato & Sgarlato, Staten Island, for Carol Ann Spatola, administratrix.

OPINION OF THE COURT

JOHN A. FUSCO, S.

In this pending proceeding, the decedent died on May 27, 1996, as a result of medical malpractice. Limited letters of administration were duly issued to Carol Ann Spatola, the surviving spouse, who retained counsel to bring a cause of action against those responsible for the death of her husband.

A cause of action for personal injury was brought by counsel, McMahon, Martine & Gallagher (hereafter McMahon). This action ultimately settled for $200,000. The action for wrongful death, however, was dismissed on defendants' motion for summary judgment. McMahon did not oppose the motion, inasmuch

[196 Misc.2d 667]

as the wrongful death action admittedly was not timely filed, having been commenced after the statute of limitations had expired.

As a result of this, the limited administratrix then sued McMahon for legal malpractice for having missed the statute of limitations. That action was settled for an additional $950,000. All sums have been distributed, except for $75,000, which has been deposited with the court, pending the determination herein. McMahon contends that their successful pursuit of the personal injury action is unrelated to their malpractice in failing to timely file the wrongful death suit. They argue that Ms. Spatola had no cause for terminating their representation, and they should be compensated for their successful efforts in settling the personal injury action. Ms. Spatola's current counsel, Sgarlato & Sgarlato (hereafter Sgarlato), maintain that they were discharged for cause and, therefore, McMahon is entitled to no fee.

The Court of Appeals in Demov, Morris, Levin & Shein v Glantz (53 NY2d 553, 556 [1981]) stated:

"The unique relationship between an attorney and client, founded in principle upon the elements of trust and confidence on the part of the client and of undivided loyalty and devotion on the part of the attorney, remains one of the most sensitive and confidential relationships in our society. A relationship built upon a high degree of trust and confidence is obviously more susceptible to destructive forces than other less sensitive

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