New York State Court of Claims

New York State Court of Claims

TILSON v. THE STATE OF NEW YORK, #2000-001-002, Claim No. 96213, Motion No. M-61180


Synopsis


Claimants were previously granted summary judgment on liability in this claim arising from an accident at a ski resort that rendered the primary claimant incapacitated. Negotiations after the decision on liability resulted in a settlement agreement whereby claimants were to receive eight million dollars. A compromise order was signed prematurely, before the settlement stipulation required by Court of Claims Act § 20-a had been executed. The Court vacated the compromise order pursuant to Court of Claims Act § 9 (8); ordered the compromise pursuant to a properly executed settlement stipulation and, while doing so, apportioned the settlement proceeds between the main and derivative causes of action and medical liens and approved the claim for attorneys fees. Distribution of the incapacitated person's share of the settlement proceeds was referred to Supreme Court.

Case Information

UID:
2000-001-002
Claimant(s):
DEVORA TILSON, as Temporary Guardian for JACK TILSON, and DEVORA TILSON, Individually
Claimant short name:
TILSON
Footnote (claimant name) :
The caption has been amended sua sponte to reflect the appointment of Devora Tilson as Temporary Guardian of the Person and Property of Jack Tilson (see, Matter of the Application of Devora Tilson, Sup Ct [Kings Co.] Scholnick, J.S.C., dated December 15, 1999 and filed December 22, 1999 [Index No. 107288/99]).
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96213
Motion number(s):
M-61180
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Finz & Finz, P.C.By: Jay L. Feigenbaum, Esq.
Defendant's attorney:
Honorable Eliot Spitzer, NYS Attorney GeneralBy: Frederick H. McGown, III, AAG
Third-party defendant's attorney:

Signature date:
March 22, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered in connection with this Court's order directing the parties to show cause why the Compromise Order of this Court dated December 23, 1999 and filed December 29, 1999 (King, J.) should not be vacated and a new Compromise Order approving the settlement entered: Petition, dated December 15, 1999 and received December 17, 1999; Affirmation of Jay L. Feigenbaum, dated December 15, 1999 and received December 17, 1999, with annexed Exhibits A-H; Stipulation of Settlement and Discontinuance (partially executed), dated December 15, 1999 and received December 17, 1999; Letter to Chambers from Devora Tilson, dated December 23, 1999 and received December 23,1999 (by fax) and December 27, 1999 (by mail); Reply Affirmation of Frederick H. McGown, III, dated December 30, 1999 and filed December 30, 1999; Notice of Petition, dated December 29, 1999 and filed December 30, 1999; Petition, sworn to December 29, 1999 and filed December 30, 1999; Report of Court Evaluator Ira K. Miller, dated December 8, 1999 and received February 3, 2000; Letter to Chambers from Jay L. Feigenbaum, dated February 4, 2000 and received February 4, 2000; Letter to Chambers from Devora Tilson, dated February 4, 2000 and received February 4, 2000; Letter to Clerk of the Court from Devora Tilson, dated February 4, 2000 and received February 4, 2000; Supplemental Petition, dated February 17, 2000 and received February 22, 2000; Affirmation of Jay L. Feigenbaum, dated February 18, 2000 and received February 22, 2000, with annexed Exhibit A; Stipulation of Settlement and Discontinuance, dated February 14, 2000 and received February 25, 2000; and Supplemental Affirmation of Jay L. Feigenbaum, dated March 7, 2000 and received March 8, 2000, with annexed Exhibits A-J.


While snow tubing at Belleayre Mountain Ski Center on February 9, 1997, JACK TILSON was grievously injured when his snow tube crested the berm of the trail and he crashed into a nearby stand of trees; and on May 16, 1997, his wife, DEVORA TILSON ("claimant"), filed this claim against defendant State of New York ("defendant" or "the State") as his guardian ad litem and individually. The Honorable James P. King subsequently granted summary judgment on liability in favor of claimant (see, Devora Tilson, as guardian ad litem for Jack Tilson, and Devora Tilson, Individually, Memorandum Decision and Order, King, J., dated October 7, 1998 and filed October 15, 1998, Claim No. 96213, Motion No. M-57499).

Pending defendant's appeal of Judge King's order on liability, the parties undertook settlement negotiations. On September 8, 1999, the day before the trial on damages was scheduled to begin, they agreed to compromise the claim for $8 million.

These settlement negotiations were conducted in light of the parties' knowledge that Judge King retired from the Court of Claims as of December 31, 1999 and would therefore be unavailable to review and approve any compromise order submitted after or insufficiently in advance of that date. The parties also recognized the need for claimant to commence a guardianship proceeding in Supreme Court under article 81 of the Mental Hygiene Law.

On December 15, 1999 the article 81 hearing took place in Supreme Court, Kings County before the Honorable Leonard Scholnick, who signed an order appointing claimant temporary guardian of the person and property of Jack Tilson with the power to negotiate this claim on his behalf and to execute all appropriate documents necessary in connection with its settlement. Justice Scholnick's order also provided for the funds belonging to Jack Tilson to be held in escrow by claimant's attorneys until such time as Supreme Court fixed a bond (Matter of the Application of Devora Tilson, Sup Ct [Kings Co], Scholnick, J.S.C., dated December 15, 1999

and filed December 22, 1999, [Index No. 107288/99]).

As soon as she was appointed temporary guardian, claimant sought an order from Judge King approving the compromise; allocating $5 million to Jack Tilson and $3 million to claimant's derivative claim; and awarding attorneys' fees in the amount of $2,651,902.95, or one-third of the recovery after deducting $43,495.50 in disbursements (see, Petition, dated December 15, 1999 and received December 17, 1999; Affirmation of Jay L. Feigenbaum, dated December 15, 1999 and received December 17, 1999, with annexed Exhibits A-H; Stipulation of Settlement and Discontinuance [partially executed], dated December 15, 1999 and received December 17, 1999). On December 23, 1999, Judge King's last day in chambers before retirement, he signed this proposed compromise order in anticipation that the State would momentarily execute the stipulation of settlement required by § 20-a of the Court of Claims Act (see, Devora Tilson, as guardian ad litem for Jack Tilson, and Devora Tilson, Individually, Compromise Order, King, J., dated December 23, 1999 and filed December 29, 1999).

In the end, however, defendant refused to execute the stipulation, lodging as objections that 1) the request for a compromise order was brought on by petition rather than by motion; 2) no evidence supported the proposed allocation of the settlement proceeds as in the best interests of Jack Tilson; and 3) the contingency fee agreement entered into by claimant was executed

prior to her appointment as guardian ad litem for Jack Tilson and therefore attorneys' fees attributable to his portion of the settlement proceeds were governed by schedule A contained in 22 NYCRR § 806.13 (b) (essentially, 25% of any amount over $25,000 of the sum recovered) rather than by schedule B (a percentage not exceeding 33
α
percent of the sum recovered where

an initial contractual arrangement between the client and attorney so provides) (Reply Affirmation of Frederick H. McGown, III, dated December 30, 1999 and filed December 30, 1999).

In addition, and unbeknownst to Judge King when he signed the compromise order on December 23, 1999, claimant that same day withdrew her consent with respect to the amount of attorneys' fees specified in the order (Letter to Chambers from Devora Tilson, dated December 23, 1999 and received December 23, 1999 [by fax] and December 27, 1999 [by mail]). Proceeding pro se, she subsequently petitioned the Court to set aside the December 23, 1999 compromise order and to issue a further order approving the settlement; placing in escrow an amount equal to the legal fees and costs and disbursements recited in it and paying her the balance of the settlement proceeds as Jack Tilson's temporary guardian and individually; and scheduling a hearing to determine the proper amount of legal fees and costs and disbursements (Notice of Petition, dated December 29, 1999 and filed December 30, 1999; Petition, sworn to December 29, 1999 and filed December 30, 1999).

Claimant and her attorneys ultimately mended their relationship by negotiating a $250,000 reduction in the attorneys' fees to be requested for Jack Tilson's claim, and claimant withdrew her various challenges to the December 23, 1999 compromise order (Letter to Chambers from Jay L. Feigenbaum, dated February 4, 2000 and received February 4, 2000; Letter to Chambers from Devora Tilson, dated February 4, 2000 and received February 4, 2000; Letter to Clerk of the Court from Devora Tilson, dated February 4, 2000 and received February 4, 2000). Claimant and defendant also subsequently executed and submitted a stipulation of

settlement and discontinuance pursuant to § 20-a of the Court of Claims Act, which consigns allocation of the settlement proceeds to the Court's discretion (Stipulation of Settlement and Discontinuance, dated February 14, 2000 and received February 25, 2000).

With these events as prologue, three disputed or otherwise unresolved matters remain: 1) the technical validity of the compromise order signed by Judge King on December 23, 1999; 2) the allocation of settlement proceeds as between Jack Tilson and claimant; and 3) the amount of disbursements and attorneys' fees. Personal appearances by the parties and counsel have been waived for good cause.

I. The December 23, 1999 Compromise Order

Judge King signed this compromise order with the aim of expediting what he believed at the time to be an agreed upon disposition of settlement proceeds with which he concurred, and which benefitted a severely injured individual and his distressed family; however, Court of Claims Act § 20-a authorizes the Comptroller to
examine, audit, and certify for payment the settlement of any claim filed in the court of claims for . . . personal injuries caused by the tort of an officer or employee of the state while acting as such officer or employee, provided that a stipulation of settlement executed by the parties shall have been approved by order of the court (emphasis added).

The compromise order therefore suffers from an error in form or substance because both parties had not executed the stipulation required by § 20-a of the Court of Claims Act before Judge King signed the order.

II. Allocation of the Settlement Proceeds

The fully executed stipulation of settlement and discontinuance submitted to the Court

provides that this action is settled "upon payment of the total sum of Eight Million ($8,000,000.00) Dollars, to be divided in accordance with the Compromise Order of this Court, [and] discontinued with prejudice pursuant to Section 20-a of the Court of Claims Act" (Stipulation of Settlement and Discontinuance, dated February 14, 2000 and received February 25, 2000). In so wording the stipulation, the parties, as noted previously, have left the allocation of the settlement proceeds to the Court's discretion.

In considering the proper allocation, the Court is mindful that Judge King, who presided over this claim, approved the originally proposed apportionment of $5 million to Jack Tilson and $3 million to claimant. The Court has also reviewed and considered the report of Ira K. Miller, the court evaluator who interviewed Jack Tilson and claimant for the article 81 proceeding, as well as the transcript from the hearing before Justice Scholnick (Report of Court Evaluator Ira K. Miller, dated December 8, 1999 and received February 3, 2000; Affirmation of Jay L. Feigenbaum, dated February 18, 2000 and received February 22, 2000, Exhibit A).

These documents reveal that Jack Tilson, who is 54 years old, is physically and cognitively impaired, hearing impaired and blind in one eye as a result of the snow tubing accident. He has endured multiple surgeries, including removal of a portion of the frontal lobe affecting language and executive functioning; no significant improvement in his functional abilities is anticipated. Dr. Carolyn McCagg, who testified at the article 81 hearing, gave a glowing and unqualified endorsement of claimant as Jack Tilson's proposed guardian, based on the unstinting care she has provided her husband of 27 years since the accident.

Jack Tilson and claimant maintain two residences: a small apartment in Brooklyn and a

house that Jack Tilson built in Randolph, New Jersey, where the family spends weekends. The New Jersey residence appears to have been foreclosed upon and purchased by a family friend who desires to return it to the family at some later date. Jack Tilson and claimant have six children, three of whom are minors ranging in age from 7 to 13 and still living with their parents.

At the time of his accident, Jack Tilson had declared bankruptcy, listing approximately $29.5 million in debts and $4,000 in assets. The accident and his permanent inability to return to work have unquestionably exacerbated these preexisting financial difficulties; and claimant has relied on family and friends to advance her significant sums of money in order to keep her family minimally afloat. She has expressed her desire to repay those debts as soon as possible, which is an issue that Justice Scholnick will decide in the article 81 proceeding.

The Court Evaluator specifically acknowledged the proposed apportionment of settlement proceeds between Jack Tilson and claimant, and found that "the allocation does not offend my sense of reasonableness, and I don't have any real objections to it" (Affirmation of Jay L. Feigenbaum, dated February 18, 2000 and received February 22, 2000, Exhibit A, pp. 34-35). He voiced misgivings only about whether claimant possessed sufficient financial sophistication to manage such a large amount of money on behalf of her husband, and recommended a structured settlement. Again, Justice Scholnick will decide this issue when claimant returns to Supreme Court for the appointment of a permanent co-guardian: she has already proposed a competent accountant as co-guardian and has in addition retained an investment advisor.

Justice Scholnick indicated that if this Court accepts the proposed allocation, he would consider authorizing disbursements from Jack Tilson's share of the settlement proceeds to pay

for one-half of the household expenses. He also noted that after payment of attorneys' fees and liens, he anticipates that Jack Tilson and claimant will retain approximately $2 million each from which Jack Tilson's care and medical expenses as well as household expenses would be paid. While acknowledging that this Court has the authority to approve the proposed allocation, Justice Scholnick expressed his view that a 5:3 split was "practical" (id., pp. 24-25), and his opinion is given great weight by this Court.

In addition to the debts pending before Justice Scholnick, there are four outstanding medical liens. Claimant's counsel has negotiated a reduction in the total amount of these liens (Affirmation of Jay L. Feigenbaum, dated December 15, 1999 and received December 17, 1999, Exhibit C), and seeks authority to pay them as follows:

Oxford Health Plans, Inc. in the amount of $117,850.93
The State of New Jersey (Medicaid lien) in the amount of $98,921.23

Westchester County Medical Center in the amount of $1,190.00

Kessler Institute of Rehabilitation in the amount of $19,497.43


In light of the physical and financial calamity that has befallen the Tilson family on account of Jack Tilson's accident, the opinions of Judge King, Justice Scholnick and Mr. Miller, and the benefit to Jack Tilson and claimant in avoiding the uncertainty and delay inherent in further litigation, this Court finds the proposed settlement amount of $8 million to be reasonable and just and the proposed allocation of the settlement proceeds (i.e., $5 million to Jack Tilson and $3 million to claimant) to be a fair and practical division consistent with the best interests of the incapacitated person. The Court further authorizes payment of the medical liens in the amounts previously recited, to be made from the $5 million allocated to Jack Tilson.

III. Court Approval of Disbursements and Attorneys' Fees

A. Disbursements

CPLR 1205 provides that an incapacitated person or his representative or guardian ad litem will not be liable for costs unless the court orders otherwise; section 202.67 of the Uniform Civil Rules for the Supreme Court and the County Court, that the court may authorize the deduction of several enumerated categories of disbursements as well as "other items approved by court order" (22 NYCRR § 202.67 [a]).

Generally speaking, "out-of-pocket disbursements made by an attorney, other than normal operating overhead costs, may be refunded to the . . . attorney out of the gross proceeds of an action" (Matter of Muccini, 118 Misc 2d 38, 44, citing Spence v Bode, 57 Misc 611). In this instance, claimant has received a copy of the list of disbursements claimed by her attorneys, which is attached as Exhibit D to the original petition. The disbursements claimed total $40,075.72[1] and claimant has agreed to the payment of this amount from the settlement proceeds. The Court finds disbursements in this amount to be reasonable given the nature of the case, the completion of discovery, the favorable decision on liability and claimant's counsel's need to prepare for a complicated trial on damages.

B. Attorneys' Fees

Claimant's contingent fee agreement with her attorneys provides for a fee of one-third of the sum recovered after disbursements (Affirmation of Jay L. Feigenbaum, dated December 15, 1999 and received December 17, 1999, Exhibit B; see, Judiciary Law § 474). The total sum recovered ($8 million) less disbursements ($40,075.72) is $7,959,924.28, to which claimant is entitled to a 3/8ths share, or $2,984,971.60; and Jack Tilson is entitled to a 5/8ths share, or $4,974,952.68.

Taking one-third of claimant's net recovery results in attorneys' fees of $994,990.53 attributable to her claim; and taking one-third of Jack Tilson's net recovery results in attorneys' fees of $1,658,317.56 attributable to his claim. As previously noted, however, claimant and her attorneys negotiated a $250,000 reduction in the attorneys' fees requested for Jack Tilson's claim, which yields a fee request in the amount of $1,408,317.56 (i.e., roughly 28% of Jack Tilson's share of the settlement proceeds). Adding this figure to claimant's attorneys' fees produces a request for attorneys' fees in the amount of $2,403,308.09.[2]

While claimant's attorneys assert that their contingent fee agreement with claimant

is beyond judicial reach, the Court does not concur: the courts of this state may have inherent power to review the reasonableness of such fee arrangements generally (Gair v Peck, 6 NY2d 97, 105-106; but see, Matter of Rodriguez, 163 Misc 2d 1066 [Gair does not afford a basis for a court to deviate from the Appellate Division's rules regarding contingent fees]; see also, Code of Professional Responsibility DR 2-106 [22 NYCRR § 1200.11]); but more particularly, this Court is responsible for protecting the interests of the incapacitated person (CPLR 1207; 22 NYCRR § 806.13 [e]). Consequently, the Court is obliged to review the attorneys' fees sought from the settlement proceeds in order to insure that they are not excessive.

In this regard, the Court necessarily takes into account Judge King's approval of the attorneys' fees set forth in the December 23, 1999 compromise order: having presided over the claim, Judge King was in the best position to evaluate the difficulty of both the legal and factual

issues presented, as well as the competence and vigor of counsel's advocacy. Quite apart from Judge King's judgment in this regard, however, this Court has no trouble independently concluding that the attorneys' fees now requested for Jack Tilson's claim are reasonable.

To put it bluntly, this claim was unusually risky. Plaintiffs injured in voluntary recreational or athletic pursuits most often do not recover damages in court in New York, a state of affairs existing at least since the Court of Appeals' 1929 decision in Murphy v Steeplechase Amusement Co. (250 NY 479), the sense of which is famously distilled in Chief Judge Cardozo's observation that "[t]he timorous may stay at home" (id. at 483). Murphy begot Turcotte v Fell (68 NY2d 432), a 1986 case that reexamined the doctrine of assumption of risk, an absolute defense to liability when Murphy was decided, in light of New York's subsequently enacted comparative negligence statute and recast it as a qualification of defendant's duty of care. The plaintiff in Turcotte, a renowned professional jockey who suffered crippling injuries while riding in a thoroughbred horse race, sued the racetrack's owner on a theory that negligent maintenance of the racing surface had created an unsafe condition. The racetrack's owner moved

for summary judgment dismissing the complaint; the trial court denied the motion; the Appellate Division affirmed; and the Court of Appeals reversed and granted the motion. The Court held that by participating in this sports event, the plaintiff "consented . . . to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation," which limited the property owner's customary duty to exercise reasonable care under the circumstances to the duty to "make the conditions as safe as they appear to be" (Turcotte v Fell, 68 NY2d at 439, supra).

In Morgan v State of New York (90 NY2d 471), the Court of Appeals in 1997 revisited the duty of care owed by an owner or operator of a sports facility to participants injured on premises while voluntarily engaged in athletic activities. The plaintiff, an experienced amateur bobsledder who had competed in the Olympic Games, was seriously injured when his bobsled went through a 20-foot opening in the outrun area of a State-run bobsled course and hit a concrete abutment. He alleged that his injuries were caused by the bobsled run's defective design and, after a trial on liability, the Court of Claims agreed and found in his favor. The Appellate Division reversed, dismissing the claim; the Court of Appeals affirmed in a decision that restated the holding in Turcotte (68 NY2d 432, supra) as amplified by its holdings in Benitez v New York City Bd. of Educ. (73 NY2d 650); Maddox v City of New York (66 NY2d 270), a case decided before the enactment of the comparative negligence statute; and Owen v R.J.S. Safety Equip. (79 NY2d 967).

Thus, the owner or operator of a sports venue is relieved from liability for "inherent risks of engaging in a sport . . . when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks," which limits the owner's or

operator's duty " ‘to make the conditions as safe as they appear to be' " (Morgan v State, 90 NY2d at 484, supra, quoting Turcotte, 68 NY2d at 439, supra). Moreover, "[t]he balance

struck . . . is that the tort rules support a social policy to ‘facilitate free and vigorous participation in athletic activities' "(Morgan v State of New York, 90 NY2d at 484, supra, quoting Benitez v New York City Bd. of Educ., 73 NY2d at 657, supra).

The Court of Appeals emphasized that while a voluntary participant in sports activities consents to "those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d at 484, supra), he accordingly does not assume (1) the risks of reckless or intentional conduct (id. at 485, citing Turcotte v Fell, 68 NY2d at 439, supra); or (2) concealed or unreasonably increased risks (id., citing Benitez v New York City Bd. of Educ., 73 NY2d at 658, supra); or (3) the risks posed by unique conditions that create dangers exceeding those inherent in the sport (id., citing Owen v R.J.S. Safety Equip., 79 NY2d at 970, supra). Finally, the particular participant's skill and experience bear upon the degree to which his knowledge and appreciation of a risk circumscribe the owner's or operator's duty of care (id., at 486, citing Maddox v City of New York, 66 NY2d at 278, supra).

In his decision and order granting claimant summary judgment on liability, Judge King found that the conditions at the snow tube run where Jack Tilson was injured were not "as safe as they appear[ed] to be": in Judge King's view, Jack Tilson had not assumed the risk of his snow tube leaving the confines of a tubing chute manifestly intended to hem in and direct him as he tobogganed down the hill. Relying on deposition testimony elicited by claimant's attorneys from defendant's employees as well as on claimant's expert engineer's affidavit, Judge King further

found that the State had negligently designed and maintained the snow tube run, which proximately caused Jack Tilson's injuries.

When the State appealed Judge King's order, the parties hedged their respective positions by negotiating this consent order. The settlement appears capable of producing a combined annual income of approximately $300,000 to claimant and Jack Tilson for their anticipated household expenses and Jack Tilson's ongoing medical care and treatment. By settling, claimant avoids the delay inherent in an appeal and the danger of a reversal.[3] The State, for its part, avoids the risk of an affirmance resulting in a damages award likely to exceed $8 million, perhaps considerably.

The contingent fee has its critics, who offer remedies for perceived abuses ranging from fees elaborately custom-made to fit the risk of non-recovery in the particular case to slightly less fussy, more generic proposals (see, e.g., Lester Brickman, Contingent Fees Without Contingencies: Hamlet Without the Prince of Denmark?, 37 UCLA L. Rev. 29 [1989]; Lester Brickman, et al., Rethinking Contingency Fees [Manhattan Institute, 1994]; Kevin M. Clermont and John D. Currivan, Improving on the Contingent Fee, 63 Cornell L. Rev. 529 [1978]). The leitmotif of this scholarly criticism is the lament that contingent fees produce windfalls because the risk of nonpayment is, in fact, slight in a large and growing proportion of tort cases.[4] Indeed, similar considerations motivated adoption of the predecessor rule to 22 NYCRR § 806.13 (b), Schedules A and B: "While liability in the negligence field has been continually expanding and the size and proportion of recoveries has mounted in constantly increasing progression, the risk of the lawyer under contingent fee agreements has been reduced and his remuneration magnified" (Gair v Peck, 6 NY2d at 112, supra).

In this case presenting a high and meaningful risk of non-recovery, claimant's attorneys achieved a settlement greatly benefitting Jack Tilson, the incapacitated person. The percentage fee they request for Jack Tilson's claim (roughly 28% of his settlement proceeds) falls between the commonly accepted percentage rates deemed to be fair and reasonable in the rules of the Third Department (22 NYCRR § 806.13 [b] [Schedule A], [Schedule B]),[5] and the Court accordingly finds it to be a fair and reasonable fee in the circumstances of this case; it is therefore,

ORDERED
, that the compromise order in this action signed on December 23, 1999 and filed on December 29, 1999 (King, J.) is hereby VACATED pursuant to Court of Claims Act § 9 (8); and it is further,

ORDERED
, that in accordance with the stipulation of settlement and discontinuance so-ordered this date and to be filed herewith, the above-captioned claim is discontinued with prejudice upon payment by the Comptroller of the sum of EIGHT MILLION DOLLARS ($8,000,000.00) as directed therein pursuant to Court of Claims Act § 20-a; and it is further,

ORDERED, that payment of the settlement proceeds shall be made as follows:

A check in the amount of $117,850.93 made payable to Healthcare Recoveries, Inc., agent for Oxford Health Plans, Inc.; and,


A check in the amount of $98,921.23 made payable to Treasurer, State of New Jersey; and,


A check in the amount of $1,190.00 made payable to Westchester County Medical Center; and,


A check in the amount of $19,497.43 made payable to Kessler Institute of Rehabilitation; and,


A check in the amount of $3,329,175.53, representing net settlement proceeds on the claim of Jack Tilson exclusive of attorneys' fees and medical liens, made payable to Devora Tilson, as Temporary Guardian for Jack Tilson and Finz and Finz, P.C., to be held in escrow pending further order of Supreme Court, Kings County directing its disbursement; and,


A check in the amount of $1,989,981.07, representing net settlement proceeds on the individual claim of Devora Tilson exclusive of attorneys' fees, made payable to Devora Tilson, and Finz and Finz, P.C.; and,


A check in the amount of $2,443,383.81, representing attorneys' fees and disbursements, made payable to Finz and Finz, P.C.; and it is further


ORDERED
that all checks are to be sent to Finz and Finz, P.C., 100 Jericho Quadrangle, Jericho, New York 11753 for distribution in accordance with this order.





March 22, 2000
New York, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]Subsequent to the return date on the order to show cause, the Court requested substantiation from claimant's attorneys for the disbursements listed on Exhibit D to the original petition. In reviewing records to respond to the Court's request, claimant's attorneys discovered two errors and accordingly amended Exhibit D, which reduced the total amount of disbursements claimed from $43,495.50 to $40,075.72. (Supplemental Affirmation of Jay L. Feigenbaum, dated March 7, 2000 and received March 8, 2000, ¶¶ 1 and 2).
[2]The papers submitted by claimant's attorneys on the order to show cause request a total fee in the amount of $2,401,902.95; however, the subsequent reduction in the amount deducted from the settlement proceeds for disbursements (see, n2, supra) creates a slight (approximately $1,400) variance between the amount requested ($2,401,902.95) and the amount computed by the Court ($2,403,308.09).
[3]Since the Court of Appeals' decision in Morgan v State of New York (90 NY2d 471, supra), the appellate division appears to have handed down nine decisions in cases where a plaintiff injured while participating in outdoor winter sports sued the owner or operator of the premises to allege an unsafe condition as the proximate cause of the injuries sustained. In four of these appeals, the appellate courts affirmed the grant of summary judgment to the defendant on the basis of assumption of risk; in one, the appellate court reversed the trial court's order denying defendant summary judgment and granted it on the basis of assumption of risk; in two, the appellate courts affirmed decisions made in the Court of Claims after trial dismissing the claims on the basis of assumption of risk; and in two, the appellate courts affirmed denial of summary judgment to defendants on the basis of assumption of risk because of disputed issues of material fact: Bono v Hunter Mt. Ski Bowl, Inc. (2000 NY App Div LEXIS 1962 [2d Dept]) (trial court properly granted defendant ski resort's motion for summary judgment based on doctrine of assumption of risk where plaintiff's decedent, an experienced skier, hit an ice patch while skiing, fell and suffered fatal injuries and plaintiff's expert's affidavit was too conclusory to raise a triable issue of fact as to whether defendant unreasonably increased the risks to which plaintiff was exposed); Hernandez v City of New York (___ AD2d ___, 699 NYS2d 901) (trial court properly granted the City of New York's motion for summary judgment based on assumption of risk by a 14-year old plaintiff who was injured when he lost control while sledding down a hill in a City park and collided with a chain link fence, given his testimony that he had gone sledding on another slope of the same hill the day before his accident and he knew that the entire hill was covered with ice below the snow); Pitkewicz v Boy Scouts of Am.__Suffolk County Council (261 AD2d 462) (trial court properly granted defendants' motions for summary judgment because the 14-year old plaintiff, who was injured when he failed to negotiate a sharp left turn on an intermediate ski slope at Belleayre Mountain Ski Center in known icy conditions, assumed the risk of falling on a patch of ice and sliding off the trail); Braun v Davos Resort (241 AD2d 533) (trial court properly granted defendant ski resort's motion for summary judgment on the basis of assumption of risk where 13-year old plaintiff who was injured while skiing when he veered to avoid hitting two skiers stopped in the middle of an expert-rated trail, slid over an icy patch, was forced into the woods upon reaching a steep drop-off and crashed into a rock; although plaintiff alleged that the ski resort negligently failed to maintain the trail free from hazards posed by steep gradients and to place fences, he did not raise a triable issue of fact as to whether the gradient or the absence of a fence constituted concealed or unreasonably increased risks, or whether defendant failed to make conditions as safe as they appeared to be); Bruno v Hunter Mt. Ski Bowl (248 AD2d 660) (trial court improperly denied defendant's motion for summary judgment because plaintiff skier, who was momentarily blinded when she passed through the plume of a snowmaking machine that she knew to be present on the trail, was thrown off balance and hit a rock wall, assumed this risk by her voluntary participation in the sport of downhill skiing); Simoneau v State of New York (248 AD2d 865) (Court of Claims properly granted State's motion to dismiss the claim after trial on liability because claimant, who was struck by a chair lift, fell and injured herself, had assumed the risks inherent in the sport of downhill skiing, which include risks involved in boarding a chair lift); Matter of Moore v State of New York (245 AD2d 456) (Court of Claims properly dismissed a claim after trial on liability where infant, who was injured while sledding at a State park when his sled hit a bump and collided with a tree, assumed this risk inherent in sledding in icy conditions, which he knew existed); Pike v Gouverneur Cent. School Dist. (249 AD2d 820) (trial court properly denied defendant's motion for summary judgment based on assumption of risk where a ninth grade student was injured when he fell out of his snow tube during compulsory gym class because of a genuine factual issue as to whether plaintiff voluntarily participated in the snow tubing activity); and Alessi v Boy Scouts of Am. (247 AD2d 824) (where an11-year old plaintiff was injured while sledding on a slope in an area where there were rocks and trees, trial court properly denied defendants' motion for summary judgment based on assumption of risk in light of issues of fact, including whether the 11-year old had knowledge of the danger and appreciated the risks, given his skill and experience).
[4]At least one prominent legal scholar, however, seems to view the contingent fee as a relatively benign institutional response to a problem of access to legal remedies: "It has been argued that contingent fees are often exorbitant. But it is easy to be misled here. A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is high because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of conventional loans, and the total amount of interest is large not only because the interest rate is high but because the loan may be outstanding for many years--and with no periodic part payment, a device for reducing the risk of the ordinary lender" (Richard A. Posner, Economic Analysis of the Law [5th ed.] § 21.9, at 624). Judge Posner adds that three related reasons argue for a contingent fee as a fraction of the judgment or settlement rather than as the opportunity cost of the attorney's services plus interest: (1) the larger the stakes, the more the defendant will spend to avoid losing and therefore the more time and effort plaintiff's lawyer will have to expend to win, "[s]o the cost of his services will be proportional to the stakes and therefore can be expressed as a percentage of them;" (2) varying the lawyer's fee with his success provides an incentive to do a good job; and (3) more risk is shifted from the plaintiff to the lawyer (id. at 625).
[5]The Third Department rule, while highly persuasive with respect to the proper amount of attorneys' fees attributable to Jack Tilson's claim, is not controlling where, as in this case, the court has statutory authority to fix the fee (22 NYCRR § 806.13 [e]; CPLR 1207).