| Matter of Thompson |
| 2009 NY Slip Op 07855 [66 AD3d 1035] |
| October 27, 2009 |
| Appellate Division, Second Department |
| In the Matter of Nigel B. Thompson, Deceased. Rosana E.Thompson, Appellant-Respondent; Kreindler & Kreindler et al.,Respondents-Appellants. |
—[*1] Kreindler & Kreindler, New York, N.Y. (Noah Kushlefsky of counsel), respondent-appellantpro se, and for respondent-appellant Meaders, Duckworth & Moore.
In a proceeding for the administration of an estate, in which Rosana E. Thompson petitionedfor a voluntary accounting pursuant to SCPA 2210 and to fix the attorney's fee of the objectantspursuant to SCPA 2110, the petitioner appeals from so much of a decree of the Surrogate'sCourt, Kings County (Lopez-Torres, S.), dated August 22, 2008, as, upon sustaining theobjectants' second objection to her accounting, directed her to pay an attorney's fee in thereduced sum of $475,514.20 to the objectants, and the objectants cross-appeal, as limited by theirnotice of appeal and brief, from so much of the decree as limited their compensation to the sumof $475,514.20 and denied their request for an award of interest.
Ordered that the decree is affirmed insofar as appealed and cross-appealed from, withoutcosts or disbursements.
The decedent, Nigel B. Thompson, died in the September 11, 2001, attacks on the WorldTrade Center. At the time of his death, he was a partner at Cantor Fitzgerald, earning between$300,000 and $400,000 per year. The decedent was 33 years old at the time of his death. Thedecedent was survived by his wife of 10 months, Rosana E. Thompson (hereinafter thepetitioner), and had no children.
In October 2003 the petitioner filed a claim with the September 11th Victim CompensationFund (hereinafter the VCF) and ultimately received an award in the amount of $5,105,142. Atissue in this proceeding is the reasonableness of the 10% contingency attorney's fee charged byKreindler & Kreindler and Meaders, Duckworth & Moore (hereinafter the objectants), the lawfirms that assisted the petitioner in filing and presenting her claim to the VCF. We conclude thatthe Surrogate's Court did not improvidently exercise its discretion in determining that thecontingency fee arrangement was reasonable under the circumstances.[*2]
"The determination of what constitutes reasonableattorney's fees is a matter 'within the sound discretion of the Surrogate, who is in a superiorposition to judge factors such as time, effort and skills required' " (Matter of McCann,236 AD2d 405, 406 [1997], quoting Matter of Papadogiannis, 196 AD2d 871, 872[1993]). "This authority rests with the Surrogate regardless of the terms of a retainer agreement"(Matter of Gluck, 279 AD2d 575, 576 [2001]; see Matter of Lanyi, 147 AD2d644, 646-647 [1989]). The court should consider the following factors in reaching itsdetermination: the "time and labor required, the difficulty of the questions involved, and the skillrequired to handle the problems presented; the lawyer's experience, ability and reputation; theamount involved and benefit resulting to the client from the services; the customary fee chargedby the Bar for similar services; the contingency or certainty of compensation; the resultsobtained; and the responsibility involved" (Matter of Freeman, 34 NY2d 1, 9 [1974]).Contingency fee "agreements entered into between an attorney and his client, as a matter ofpublic policy, are of special concern to courts. The burden of proving that the compensationagreement was reasonable rests with the attorney" (Matter of Lanyi, 147 AD2d at 647).
Here, although the 10% contingency fee was higher than the 5% suggested by the UnitedStates Department of Justice in the commentary accompanying the regulations implementing theVCF (see Supplementary Information to Interim Final Rule [66 Fed Reg 66280 (Dec. 21,2001)]), and the objectants in this case "did not bear the risks that ordinarily justify contingencyfees in conventional tort litigation" (Matter of Gomez, 5 Misc 3d 534, 537 [2004]), theSurrogate correctly concluded that the objectants "sought a contingency fee [which was] lessthan the average contingency for wrongful death claims which . . . ranges from25% to 33% for non-medical malpractice actions." Indeed, by charging a lower than averagecontingency, the "retainers . . . appear to acknowledge . . . thatcounsel's undertaking was to be different in degree, if not in kind, from what it would have beenif the fee arrangement had contemplated the prosecution of a tort action" (Matter ofGomez, 5 Misc 3d at 537-538). Furthermore, the evidence supports the Surrogate'sconclusion that the objectants' efforts and expertise contributed to the substantial size of theaward, which exceeded the maximum presumptive award listed in the tables promulgated by theVCF by almost $1 million. In this regard, the objectants advised the petitioner to request ahearing before the VCF, during which they advocated on her behalf for an award in excess of themaximum presumptive amount, based on "extraordinary circumstances not adequately addressedby the presumptive award methodology" (28 CFR 104.31 [b] [2]). The objectants also prepared areport submitted to the VCF, highlighting the extraordinary circumstances of the case, andadvocating for an award in excess of $9 million.
Accordingly, we decline to disturb the Surrogate's discretionary ruling that the contingencyfee arrangement was reasonable under the circumstances.
The parties' remaining contentions are without merit. Fisher, J.P., Covello, Dickerson andLott, JJ., concur.