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TSOTESI v. BOARD OF EDUCATION OF THE CITY OF NEW YORK

United States District Court, Southern District of New York


August 25, 2003

MODUPI TSOTESI, ETC., PLAINTIFF, AGAINST THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, ET AL., DEFENDANTS, S.D.N.Y.(0000)

The opinion of the court was delivered by: Lewis Kaplan, District Judge

ORDER

This matter is before the Court for approval of an infant compromise order and counsel fees.

Facts

The complaint in this action alleged that an individual defendant employed by the New York City Board of Education seized the arm of plaintiff's minor daughter without cause and twisted it behind her back, ultimately breaking the arm. Plaintiff retained the Law Offices of Todd J. Krouner to sue on his own behalf and that of his daughter. The retainer agreement provided that the Krouner office would be entitled to one-third of the recovery (including any attorney's fee award) net of counsel's actual expenses.

Counsel filed this action on plaintiff's behalf against the individual defendant who allegedly broke the child's arm, the school principal, the superintendent of Manhattan district high schools, the former New York schools chancellor and the Board. The complaint alleged substantive due process and equal protection claims under 42 U.S.C. § 1983 as well as state law claims.

The Board and the individual defendants other than the one who allegedly injured the child promptly moved for judgment on the pleadings. In an opinion reported at 258 F. Supp.2d 336, the Court granted the motion to the extent that it dismissed the equal protection claim as to all moving defendants and dismissed the official capacity claims as to the supervisor defendants. [ Page 2]

Plaintiff subsequently entered into an agreement with the Board to settle the action on behalf of his daughter for $55,000. The Krouner office seeks approval of that settlement, of which it proposes to keep $35,000 for fees and disbursements. The infant would receive $20,000. The papers are silent as to whether the plaintiff's claim in his own right — i.e., the claim asserted apart from his claim as the child's natural guardian — is being settled and, if so, for what amount.

Discussion

This application is governed by S.D.N.Y. Civ. R. 83.2(a), which in most respects refers to New York State practice. Thus, the procedure and substantive standards governing approval of the settlement are derived largely from N.Y. CPLR 1206-08.

There are at least two problems with this application.

First, it does not comply with CPLR 1208(a), subd. 8, in that it fails to advise the Court whether the plaintiff's claim in his own right is being settled and, if so, what if anything he is to receive in exchange for surrendering that claim.

Second, the fee award sought by the Krouner office is excessive. Despite a contingency fee arrangement under which it would have been entitled to one-third of the settlement, net of expenses (i.e., $55,000 less expenses of $5,546), or $16,484.67, counsel seeks a total of $35,000. The stated justification is that the firm's lodestar amount is said to be $37,556. Counsel has the temerity to describe the fee application as therefore embodying a discount. Indeed, he somehow has persuaded plaintiff — in the face of the retainer agreement — that he is getting a discount.

The Court has serious reservations as to whether counsel's application itself violates the terms of his retainer. After all, having agreed to take the case for one third of the recovery, it is not clear why he should be permitted to seek a fee of more than 60 percent. But that concern may be put to one side, as no reasonable view of the lodestar possibly bring it to more than one-third of the recovery net of expenses. The amount of time and effort devoted to this matter was out of all proportion to any reasonable handling of the case. Among the factors contributing to this situation was counsel's decision literally to make a federal case out of a garden variety state law tort claim. This resulted in entirely needless research, drafting and motion practice relating to plaintiff's federal claims, many of which were dismissed and none of which served any apparent purpose except perhaps to open the possibility of a fee award under 42 U.S.C. § 1988.

Conclusion

For the foregoing reasons, the application is denied in all respects. This is without prejudice to renewal upon papers complying in all respects with CPLR 1206-08 and to a renewed [ Page 3]

application for approval of attorney's fees and expenses not to exceed counsel's actual expenses plus up to one third of the recovery up to the recovery net of those expenses. Any such application shall be filed no later than September 15, 2003.

SO ORDERED. [ Page 1]

20030825

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