New York State Court of Claims

New York State Court of Claims

KASSEM v. THE STATE OF NEW YORK, #2006-030-579, Claim No. 95544


Case Information

MOHAMMED KASSEM, an infant by his mother and natural guardian, FATIMA KASSEM
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
October 31, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This claim has reached a conclusion, thus a hearing was conducted on October 23, 2006

concerning the amount of any attorney’s lien held by former Counsel of record for Claimants,
Charles Berkman, pursuant to Judiciary Law §475, in accordance with this Court’s Decision and Order [Kassem v State of New York, Claim No. 95544, Motion No. M-67321, unreported decision (Scuccimarra, J., June 2, 2004)], and subsequent conferences before the Court held on July 2, 2004, September 1, 2004 and again on March 21, 2006. In the June 2, 2004 Decision and Order, the Court had directed that no funds shall be paid on the claim, by judgment or settlement, prior to the determination of the amount of the lien at the conclusion of the litigation. Reimbursement of any disbursements beyond the $14.89 already approved was to be determined at any hearing as well.

The Court has reviewed an “Affirmation in Support of Plaintiff’s Fees being Determined in Accordance with Prior Court Order (sic)” submitted by Mr. Berkman together with its attachments, heard testimony from Mr. Berkman, as well as the testimony of Christopher J. Smith, current counsel for Claimant and a former employee of Mr. Berkman, and also reviewed an Affirmation in Opposition and Memorandum of Law submitted by Mr. Smith with attached exhibits, a subsequent transmission by Mr. Smith by FAX on October 23, 2006 of salary records, and a transmission by FAX on October 26, 2006 by Mr. Berkman indicating that he would not be submitting any further reply, and reiterating arguments made on the record. The Court has also reviewed generally the file maintained on this Claim by the Office of the Chief Clerk, including prior motion practice.

As noted in papers submitted by Mr. Smith, a resolution of the claim in the amount of 4.1 million dollars is the subject of an infant’s compromise, as is the total attorney’s fee associated with that proposed settlement in the amount of $561,129.79. Mr. Berkman seeks 2/3 of the TOTAL attorney’s fee figure.

Mr. Berkman first testified that he spent “about $2,000.00" to obtain hospital records, and then testified that it was “$1900.00,” and that he had letters memorializing this amount from the medical records providers, and then essentially retracted that by saying that he no longer had record of payments, and/or that his wife had handled the bookkeeping and had died “a little over a year ago.” In further testimony he claimed that his firm had served the initial pleadings, a bill of particulars, demanded and obtained document discovery, and took depositions. During that period it was Mr. Smith who performed the services in his capacity as an employee of the firm. Mr. Berkman claimed he had “paid [Mr. Smith] $100,000.00” per year for the “three and one-half years” Mr. Smith was employed, and that Mr. Smith spent “25% of his time on this case.”

Mr. Berkman claimed that Mr. Smith had purposefully delayed the case while in his employ, and intimated that Mr. Smith removed portions of the file - including disbursement records - prior to leaving his employ in December 2001.[1] Mr. Berkman testified that he should be entitled to between 1/3 and 2/3 of any recovery had by Mr. Smith.

Although the initial ruling directing that the issue of attorney’s fees would be heard when the litigation was concluded was made on June 2, 2004, and the matter was scheduled on September 19, 2006 for a hearing when it appeared that the amount of the attorney’s lien could not be resolved amicably, Mr. Berkman submitted nothing to substantiate either the time spent on the file or any disbursements paid.[2] He maintained that unlike a commercial practice, in negligence litigation “we don’t keep records.” When asked by the Court if Mr. Berkman therefore could not say whether he had expended 10 hours or 1,000 hours on this case, Mr. Berkman said it “certainly was not 1,000 hours but was more than 100 hours.” He repeated that the firm served a “notice of claim”, a bill of particulars and discovery demands, performed depositions and obtained records, and reasoned “how could . . . [he] have obtained the records without paying for them.”

A review of the Affirmation submitted by Mr. Berkman is not particularly helpful, in that he does not address, except peripherally, either the amount of disbursements or what work was performed, instead accusing Mr. Smith of deliberate delay and making excuses for Mr. Berkman’s failure to provide receipts or records of any kind to present at this hearing. Notably, the documents attached to Mr. Berkman’s affirmation[3], in no particular order and without any exhibit tabs identifying them, are respectively, a letter dated June 26, 1996 from a paralegal in Mr. Berkman’s firm asking for documents and for advice as to the cost for same, and two letters from a photocopying service or other entity asking for payment for medical records, and a letter from Mr. Smith dated August 31, 2000 directed to the Attorney General’s Office enclosing a copy of a Victory Memorial Hospital chart for the infant, and referencing further documents apparently provided to Mr. Smith at a conference between the Assistant Attorney General then handling the case and Mr. Smith. There is no other indication that documents were ever transmitted, received or paid for. Although the court is not unmindful of the fact that some documents were obtained, Mr. Berkman did not establish what he paid for them, if anything. When Mr. Smith testified briefly, he noted that when he worked for Mr. Berkman, the file had “already been in Mr. Berkman’s office for two years . . . the notice of claim was filed in January 1997.” “. . . [Mr. Berkman] was running around trying to get those records that he never paid for . . . and in 1998 . . . [Mr. Smith] came to work for . . . [Mr. Berkman].” Mr. Berkman, Mr. Smith said, had done little on the file up to the time he first came into his employ, and that it was Mr. Smith who served the bill of particulars in 1999. He described obtaining hospital records, that is, writing letters to obtain same, “as routine work given to a paralegal” requiring no particular skill related to professional practice. Mr. Smith said he recalled conducting one deposition during his employment - of the Claimant’s mother - and averred he did not delay anything in the prosecution of the case that was ultimately Mr. Berkman’s responsibility.

Mr. Smith said that measuring what Mr. Berkman’s fee should be on the basis of any salary paid to him did not make sense, first, because the figure cited was incorrect[4] and, second, because Mr. Smith worked on countless cases for Mr. Berkman - he was “the medical malpractice attorney” - and given the way the office was run he hardly had time to work on those because he would be pulled away to work on various other matters that would come up. He said he had “50, 60, 70, 80 other files and whatever else . . . [Mr. Berkman] wanted to throw at . . .[him].” Mr. Smith said that the manner of operation of Mr. Berkman’s practice inhibited development of the file - “you can’t do this working in a crazy law firm when you have to run off to court and make excuses for adjournments” - and that it was his labor in retaining an expert to review the file once he left the firm that moved the claim beyond the general negligence statements contained in the claim served by Mr. Berkman to the specific theory that there had been a failure to properly intubate the infant claimant during a hypoxic episode at birth. He indicated that he had no access to Mr. Berkman’s checkbook, and denied removing anything from the file, pointing out that it took over two (2) years to finally obtain access to the file, and that it was only when he brought a contempt application before this Court, that the matter was resolved on consent in September 2004.

Mr. Smith argued that Mr. Berkman, according to the case law, is entitled to his proportionate share based on the work performed, which he estimated to be approximately 5%, or slightly more than $25,000.00, an amount offered and refused as acknowledged by both Mr. Berkman and Mr. Smith. Mr. Smith pointed out that the attorney’s fee he took on this claim was reduced in the interest of obtaining as much as possible for the infant’s benefit (“lower than 13.8%”) and that his disbursements, in order to fully develop the claim and achieve settlement, were “over $11,000.00.”

Ironically, it is in Mr. Smith’s submissions that the most salient points relevant to the limited issue before this Court are brought out. Namely, Mr. Berkman’s firm was retained in 1996 and Mr. Smith left the firm in December 2001. Mr. Berkman was directed by this Court to turn over the file on June 2, 2004, and the file was turned over completely on September 1, 2004 when counsel withdrew their cross-motion at a conference with this Court. Additionally, Mr. Smith’s Memorandum of Law cites to the authority of Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655 (1993), for his suggestion that a proportionate percentage be applied to the total attorney’s fee to calculate Mr. Berkman’s fee. See also Byrne v Leblond, 25 AD3d 640 (2d Dept 2006); Ford v Albany Med. Ctr., 283 AD2d 843 (3d Dept 2001), lv dismissed 96 NY2d 937, rearg denied 97 NY2d 654 (2001). He does not argue that Mr. Berkman is entitled to nothing, the position an attorney who has been discharged for cause might be placed in, nor does he suggest limiting the fee to the actual work performed. In Cohen v Grainger, supra, the former attorney in a personal injury case was held to be entitled to a proportionate share of the attorney’s fee recovered in a case ultimately disposed of in Federal Court based upon the attorney’s lien triggered in the New York State personal injury suit originally commenced by the former attorney. Since the attorney had been silent as to how his fee would be calculated at the time he learned of new counsel pursuing the claim, he was not limited to a quantum meruit recovery, because the presumption was held to be that the amount of the attorney’s lien would be premised upon contingency, rather than quantum meruit in the absence of some other indication by the former attorney. The Court rejected the argument by the new attorneys that the presumption should operate in the other direction, limiting the former attorney to the value of the actual work performed on a quantum meruit basis.

In a sense, however, this is a six-of-one, half-a-dozen-of-another kind of analysis, because what is actually assessed, regardless of nomenclature, is the amount of work performed by the former attorney relative to the whole work performed by both attorneys.

In terms of actual work performed for the benefit of the client during the time period in which Mr. Berkman’s firm retained the file - 1996 until September 2004 - it is clear that a minimum of work was performed, and that ultimately the pace and manner in which it was performed was the primary responsibility of Mr. Berkman, who cannot now assert that Mr. Smith deliberately slowed down the process. The Court does not credit Mr. Berkman’s unsubstantiated allegations of failure on Mr. Smith’s part to pursue the matter diligently while still employed because of some scheme to steal the client, does not credit Mr. Berkman’s estimate of the value of his own contributions in the service of the client - indeed there is no evidence of any contribution on his own part in any submissions made or testimony given - nor does the Court credit the interesting hypothesis proposed in the papers Mr. Berkman submitted, but not mentioned in his direct testimony, that Mr. Smith stole the expert information from the file, too. Specifically, Mr. Berkman states in his Affirmation: “When Mr. Smith left my employ the expert witness he discussed with me was no longer in the file.” [Affirmation by Charles Berkman, Page 5].

It is impossible not to remark that these gentlemen harbor a considerable amount of animosity and resentment for each other, coloring what should have been a respectful transition of a case from one officer of the court to the next, in the interest of the client. The issue involved in this hearing, however, was a limited one, and was Mr. Berkman’s burden to sustain. Instead, it is Mr. Smith’s submissions that sustain, at least in part, what should have been Mr. Berkman’s burden to prove in the first instance. Prior motion practice, including the rulings of Judge Waldon made in 2003 relative to the turnover of the file, before this Court had the opportunity to observe these attorneys, was not the issue.

After carefully considering the foregoing, including hearing the testimony of Mr. Berkman and Mr. Smith and observing their demeanor as they did so, and assessing their respective credibility, the Court finds that the pro rata value of the legal services rendered by Mr. Berkman’s firm to the Claimant for the ultimate successful result achieved during the time that Mr. Berkman was Counsel of record in the form of a percentage of the total fee earned is 5% of the fee recovered, or the total amount of $28,056.49. Since Mr. Berkman failed to sustain his burden of establishing the amount of disbursements, the application for same is denied.

Accordingly, the amount of compensation Mr. Berkman is entitled to pursuant to Judiciary Law §475 is $28,056.49.

October 31, 2006
White Plains, New York

Judge of the Court of Claims

[1]. Approximately five years before the hearing date.
[2]. Notably, in prior motion practice regarding the handover of the file to Mr. Smith that was to be heard by this Court, Mr. Berkman made a cross-motion for attorneys fees. Counsel withdrew the motions at a conference before the Court on September 1, 2004, and Mr. Berkman was directed to furnish proof of disbursements. It is now more than two (2) years later, and Mr. Berkman has (again) not produced proof of payment of any of the disbursements claimed.
[3].Other papers appended to Mr. Berkman’s current submission, irrelevant to the issue here, are the transcript of a hearing held before Judge Waldon of this Court on May 29, 2002 involving substitution of attorneys, together with a copy of the Decision and Order of Judge Waldon filed May 28, 2003.
[4]. On October 23, 2006 Mr. Smith transmitted by FAX a copy of a W-2 form issued to him by the Berkman firm for the year 2001(from January to December 17, 2001 when he left their employ), showing a salary paid in the amount of $82,000.00.