Memorandum of Law 4
Affidavit of Robert J. Smith, Esq., with Exhibit 5
In a Decision dated October 2, 2006, this Court awarded claimant the total
amount of $2,620,000.00 for damages resulting from medical malpractice
previously determined against the defendant.
Of the total amount awarded, the sum of $1,720,000.00 was attributed to past
damages, and a judgment in that amount, plus interest, has been entered. This
Court directed that the judgment as to future damages be held in abeyance
pending a hearing pursuant to CPLR Article 50-A.
This claim arose on May 8, 1997, when claimant, then a 76 year old woman with
Parkinson’s Disease, suffered an intercerebral hemorrhage while undergoing
a surgical procedure known as a pallidotomy.
Based on the pleadings and other documents filed with the Court, together with
the Court’s involvement in both the liability and damages phases of this
claim, this Court is well aware that complex medical issues have been involved
in this claim, generating voluminous records and documents during discovery.
Furthermore, Mr. Kalabanka, in his supporting affidavit (see Item 2) has
detailed the numerous depositions that were conducted in connection with this
claim. He has also documented the legal services which were required in order
to prepare and argue the summary judgment motion with regard to liability, the
subsequent appeal to the Appellate Division, Fourth Department, and his time
involved in preparation for and conduct of the damages trial, which was tried
over a period of several days.
Mr. Kalabanka conservatively estimates that over 3,000 hours of attorney time
has been spent in the prosecution of this
. Additionally, as set forth in the
affidavit of Robert J. Smith (see Item 5), the law firm of Costello, Cooney
& Fearon, PLLC, the initial attorneys for claimant, has devoted
approximately 750 hours of attorney time to this claim.
Pursuant to Judiciary Law § 474-a(4), an increased fee may be awarded by
the Court when extraordinary circumstances renders the compensation provided by
the mandatory fee schedule (§ 474-a) inadequate. If the trial
court finds that extraordinary circumstances exist, it may then fix reasonable
compensation for the legal services greater than what is specified in the fee
schedule, as long as the greater compensation does not exceed the fee
established by the retainer agreement (Yalango by Goldberg v Popp, 84
The Court has examined the retainer agreement (see Exhibit A to Items 1,2)
between claimant and her attorneys, which not only referenced the fee schedule
of Judiciary Law § 474-a(2), but also retained the right for the attorneys
to make application for a greater fee under Judiciary Law § 474-a, and if
requested, the attorneys would not seek approval of any fee greater than
33⅓ % of the net sum recovered. As set forth in Mr. Kalabanka’s
affidavit, claimant’s attorneys have requested that this Court approve
legal fees in the amount of 28% of the net sum recovered, well within the range
set forth in the retainer agreement.
Having previously decided claimant’s motion for summary judgment as to
liability, and then having presided over the damages trial, this Court is well
aware of the time and preparation required to adequately and properly represent
claimant throughout this claim. This thorough trial preparation was especially
evident throughout the course of the damages trial, which involved complex
medical issues in view of claimant’s pre-existing Parkinson’s
Disease. The Court therefore finds that the requisite extraordinary
circumstances do exist in this claim, and such circumstances justify the award
of an increased fee (see O’Connell v Shivaram, 37 AD3d 435). The
Court further finds that the request for a fee in the amount of 28% of the net
sum recovered is reasonable and appropriate under the circumstances.
Additionally, the Court notes that claimant, by her daughter and
attorney-in-fact, has submitted an affidavit in support of this application (see
Item 3), and also notes that any fee awarded in this claim will be shared
between Michaels & Smolak, P.C., and Costello, Cooney & Fearon, PLLC.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-73022 is hereby GRANTED; and it is further
ORDERED, that the attorneys’ fees awarded in this claim are hereby
established at 28% of the net sum recovered.