New York State Court of Claims

New York State Court of Claims

ANDERSON v. THE STATE OF NEW YORK, #2007-009-016, Claim No. 98730, Motion No. M-73022


The application of claimant’s attorneys for an increased fee pursuant to Judiciary Law 474-a(4) was granted.

Case Information

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:
BY: David A. Kalabanka, Esq.,Of Counsel.
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
May 24, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


In this medical malpractice claim, claimant’s attorneys have brought an application pursuant to Judiciary Law § 474-a(4), seeking an increased legal fee greater than the amount permitted pursuant to the mandatory fee schedule set forth in Judiciary Law § 474-a(2).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of David A. Kalabanka, Esq., with Exhibit 1,2

Affidavit of Sheila Clark, daughter of claimant 3

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.[1] 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 claim[2]. 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[2]) 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 NY2d 601).

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.

May 24, 2007
Syracuse, New York

Judge of the Court of Claims

[1].In a Decision and Order filed October 17, 2003, this Court granted claimant’s motion for partial summary judgment as to liability, and found the State 100% liable for the damages suffered by claimant. This Decision and Order was subsequently affirmed by the Appellate Division, Fourth Department (12 AD3d 1191).
[2]. Two separate actions were also commenced in Supreme Court, arising out of the same facts and circumstances, but were discontinued following this Court’s decision on liability.