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United States v. Bosurgi

December 12, 1984

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
LEONE BOSURGI AND EMILIO BOSURGI AS EXECUTORS OF THE ESTATE OF ADRIANA BOSURGI, DECEASED, AND CHEMICAL BANK AS STATUTORY EXECUTOR OF THE ESTATE OF ADRIANA BOSURGI, DECEASED, AND LEONE BOSURGI AND EMILIO BOSURGI, DEFENDANTS, CHEMICAL BANK, AS STATUTORY EXECUTOR OF THE ESTATE OF ADRIANA BOSURGI, DEFENDANT-APPELLEE-CROSS-APPELLANT, ESTATE OF ADRIANA BOSURGI, DECEASED, AND BENEDICT GINSBERG, ADDITIONAL DEFENDANTS TO COUNTERCLAIM AND CROSS CLAIM FOR INTERPLEADER, BENEDICT GINSBERG, ADDITIONAL DEFENDANT TO COUNTERCLAIM AND CROSS CLAIM FOR INTERPLEADER-APPELLANT-CROSS-APPELLEE



Appeal and cross appeal from an order of the United States District Court for the Southern District of New York (Duffy, J.) fixing attorney's fees and granting the attorney a priority lien pursuant to 26 U.S.C. § 6323 (b)(8). Affirmed.

Author: Van Graafeiland

Before: VAN GRAAFEILAND, WINTER and PRATT, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This case comes to us by appeal and cross appeal from so much of an order of the United States District Court for the Southern District of New York (Duffy, J.) as awarded a charging lien to Benedict Ginsberg for legal services on behalf of Leone and Emilio Bosurgi in a State court action against Chemical Bank and directed the distribution between Ginsberg and the IRS of the settlement proceeds of that action. The dispute may be summarized rather simply. Ginsberg says he was not paid enough. The Government says that he was. Chemical argues that Ginsberg should not have been paid at all, but agrees with the Government that the payment as made was adequate.

The historical background of the dispute may be found in opinions already published. See United States v. Bosurgi, 530 F.2d 1105 (2d Cir. 1976); United States v. Bosurgi, 84 F.R.D. 668 (S.D.N.Y. 1979), aff'd mem., 633 F.2d 206 (2d Cir.), cert. denied, 449 U.S. 919, 66 L. Ed. 2d 146, 101 S. Ct. 316 (1980); United States v. Bosurgi, 389 F. Supp. 1088 (S.D.N.Y. 1975); United States v. Bosurgi, 343 F. Supp. 815 (S.D.N.Y. 1972).For our purposes, therefore, a brief summary of the facts will suffice.

In 1954 Adriana Bosurgi, an Italian national, opened a custodian account at Chemical. In 1963 Mrs. Bosurgi died, and the account was transferred to her two sons, Leone and Emilio. In 1966 the sons, represented by Ginsberg, sued Chemical in New York State Supreme Court for alleged misuse of deposited securities. This action was settled in 1970 for $215,000. Because the IRS then was making a claim against Chemical for unpaid taxes on Mrs. Bosurgi's estate, the settlement agreement provided that Ginsberg was to hold the settlement proceeds in escrow pending determination of the IRS claims.

In 1971 the Government commenced this action against Chemical and the Bosurgis to collect the unpaid taxes and to foreclose its tax lien on the escrow funds. The Bosurgis, who reside in Italy, did not answer, and an in rem judgment was entered against them by default. Sociedad Anonima De Inversiones Commerciales E Industriales ("SAICI"), a Uruguayan company, and Ginsberg later were added as defendants. SAICI was added because it had brought suit in State court contending that it was the owner of the fund in the Chemical account; Ginsberg was added because he had a claim for attorney's fees. On SAICI's appeal from a State court ruling rejecting its claim of ownership, the Appellate Division, First Department, reversed, directing that summary judgment be entered in favor of SAICI and remanding to the trial court for a hearing to fix the amount of Ginsberg's fee. Sociedad Anomina De Inversiones Comerciales E Industriales v. Bosurgi, 43 A.D.2d 519, 349 N.Y.S.2d 75 (1st Dep't 1973) (mem.). Thereafter, the State trial court awarded Ginsberg a lien against the escrow fund in the amount of $68,080.37 plus 35% of the accrued interest on the fund and $994.05 in disbursements.

Following entry of the State court judgment, the United States, Chemical, SAICI and Ginsberg each moved for summary judgment in this action. The Government's motion was denied; the defendants' motions were granted. 389 F. Supp. 1088. On appeal, this Court held that neither side was entitled to summary judgment and remanded to the district court for further proceedings. 530 F.2d 1105. We also directed the district court to "fix the amount of Ginsberg's priority lien for attorney's fees after hearing any evidence presented by the interested parties." Id. at 1113 n.8.

Thereafter, the district court struck SAICI's answer because of its refusal to comply with discovery orders and directed that judgment by default be entered in favor of the Government. 84 F.R.D. 668. The district court then ordered that the escrow funds be paid to the Government, except for Ginsberg's charging lien which the court fixed in the amount of $113,154.38. On January 18, 1984, Ginsberg directed the Chase Manhattan Bank, custodian of the escrow funds, to pay $534,183.37 to the United States and to retain the balance of $114,122.35 ($113,154.38 plus $967.97 in interest that had accrued since the district court's order) in his account. The present appeal focuses on the propriety of this retention.

At the outset, we disagree with Chemical's contention that the escrow provision in the 1970 settlement agreement precluded the district court from awarding this money to Ginsberg as his attorney's lien. In 1971, when the United States sued to foreclose its lien against the settlement fund, District Judge Bonsal ordered that the money be paid to Ginsberg and held by him in escrow subject to the Government's liens and any further order "with regard to the rights of the United States of America and any other claimant to the said $215,000." From that time on, the settlement funds were under the jurisdiction and control of the district court. 530 F.2d at 1112. When that court later held that the Government's tax lien was valid and enforceable, the 1970 stipulation requiring Ginsberg to hold the funds pending determination of the IRS claims became a dead letter -- the Government was entitled to the money. However, on the prior appeal to this Court, 530 F.2d 1105, the Government conceded that Ginsberg had a prior lien and the right to be paid out of the same funds. See 26 U.S.C. § 6323(b)(8). The Government's sole contention was that the amount of Ginsberg's lien had to be fixed by the district court. This has been done pursuant to this Court's mandate which is the law of the case. If the Government is content, as it is, to recognize Ginsberg's lien, there is nothing in the 1970 settlement agreement that requires Ginsberg to forfeit that lien.

There is no merit in Chemical's contention that, because the Government has a valid claim to the entire settlement proceeds by virtue of its tax lien, Ginsberg has recovered nothing on behalf of his clients so as to entitle him to an attorney's lien. It is against Ginsberg's recovery for his clients that the Government has imposed its lien. The clients will receive credit for the amount of the Government's recovery in the event that liability hereafter is imposed upon them for unpaid taxes on their mother's estate.

Because satisfaction of Ginsberg's lien has been delayed for so long, the dispute over the amount of Ginsberg's lien award is somewhat more troublesome. When Magistrate Bernikow, to whom Judge Duffy referred consideration of the award, began his inquiries, he discovered that Ginsberg had not kept time records. Attempting to reconstruct the amount of time he had spent on his clients' behalf, Ginsberg arrived at a total of 1076 hours. Magistrate Bernikow reduced this to 557.25 hours. Ginsberg also claimed 112 hours for the work of an employee. The magistrate allowed 64 hours. Magistrate Bernikow then computed the amount of Ginsberg's lien on the basis of current rates. Allowing Ginsberg $200 per hour and the employee $125 per hour, the magistrate arrived at a total of $119,450.*fn1

The district court, feeling bound by this Court's decision in New York State Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1152-53 (2d Cir. 1983), held that the award should have been based on historic rather than current rates. The court did not, however, order a hearing as to the rates that prevailed in the sixties. Relying primarily on its own knowledge, the district court fixed the rate for Ginsberg at $125 per hour and for his employee at $75.00 per hour. With these figures as a basis, the court fixed Ginsberg's lodestar award at $75,436.25. It then applied a multiplier of 1.5 "to compensate for the delay in payment" and awarded Ginsberg a total of $113,154.38.

Ginsberg asks this Court to accept all of the district court's computations except the 1.5 multiplier. He contends that, in place of the 1.5 multiplier, this Court should add to the lodestar award that portion of the total earnings of the $215,000 escrow account that is allocable to the $75,436.25 lodestar figure. He computes this to be $152,026.67. Since the district court already has added $37,718.13 to Ginsberg's lodestar figure, Ginsberg asks this ...


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