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