United States District Court, S.D. New York
JUSTIN T. MAHER, Plaintiff,
CAITLIN H. RAILO and QUALITY BUS SERVICE, LLC, Defendants.
OPINION AND ORDER
C. MCCARTHY, UNITED STATES MAGISTRATE JUDGE
action, Plaintiff Justin T. Maher (“Plaintiff”)
sought to recover damages for personal injuries he allegedly
sustained as a result of a motor vehicle accident that
occurred on February 14, 2013, when Plaintiff's vehicle
was struck by a bus that was operated by Defendant Caitlin H.
Railo (“Ms. Railo”) and owned by Defendant
Quality Bus Service, LLC (“QBS”) (together,
“Defendants”). The parties settled the case, and,
on December 8, 2015, the Court entered a Stipulation of
Settlement, Discontinuance and Order of
Dismissal. (Docket No. 119). On December 6, 2016,
Plaintiff's counsel of record, Cognetti & Cimini, LLC
(“C&C”), sought and obtained an order to show
cause regarding whether the Court should accept ancillary
jurisdiction over an attorneys' fee dispute between
C&C and Plaintiff's former counsel, Gary Greenwald
& Partners, P.C. (“GG&P”). (Docket No. 120).
At the show cause hearing held on December 13, 2016, the
Court accepted ancillary jurisdiction with the consent of all
parties. Presently before the Court is a motion filed by
GG&P seeking reimbursement from C&C of certain
litigation costs advanced by GG&P, a percentage of the
contingency fee received by C&C from the settlement
proceeds, and interest. (Docket No. 136). On August 3, 2017,
the Court heard oral argument on the motion. For the reasons
set forth below, GG&P's motion is granted in part and
denied in part. The Court finds that GG&P is entitled to
(1) reimbursement of litigation costs advanced by GG&P in
the amount of $10, 238.69, (2) five percent of the
contingency fee received by C&C from the settlement of
Plaintiff's claims, and (3) interest running from
November 30, 2015 at a rate of nine percent per annum.
factual and procedural history of this case is complex and
largely immaterial to the present fee dispute. The following
is a summary of the relevant history based on the
declarations and other documents submitted in support of and
opposition to GG&P's motion, as well as the
Court's familiarity with the prior proceedings in this
February 14, 2013, Plaintiff was involved in a motor vehicle
accident in Orange County, New York, sustained serious head
injuries, and was placed in a medically-induced coma for
nearly a month. (Docket No. 137 ¶ 12; Docket No. 141
¶¶ 5-6). On February 16, 2013, Plaintiff's
biological father, Edward Maher, consulted with C&C and
entered into a Contingent Fee Agreement, ostensibly on
Plaintiff's behalf, requesting that C&C investigate
the circumstances surrounding the accident and pursue an
appropriate civil action to recover for Plaintiff's
accident-related injuries. (Docket No. 141 ¶¶ 7-8;
Docket No. 141-3). Pursuant to the Contingent Fee Agreement,
C&C undertook representation of Plaintiff by retaining
the services of investigators and accident reconstruction
experts to obtain witness statements and perform site and
vehicle inspections. (Docket No. 141 ¶ 9).
February 20, 2013, while Plaintiff remained in a coma,
Plaintiff's maternal grandparents, William and Christine
Eveleth, executed a written retainer agreement to retain
GG&P for purposes of pursing a lawsuit in the Supreme
Court of the State of New York arising from the injuries
sustained by Plaintiff. (Docket No. 137 ¶ 15; Docket No.
137-6). After being retained, GG&P began investigating
the accident, obtaining medical records, and negotiating with
insurance companies. (Docket No. 137 ¶ 17).
February 27, 2013, GG&P initiated a proceeding pursuant
to Article 81 of the New York Mental Hygiene Law in the
Orange County Surrogate's Court and petitioned to have
Plaintiff's grandfather, William Eveleth, appointed as
Plaintiff's guardian. (Docket No. 141 ¶ 11; Docket
No. 137 ¶ 13; Docket No. 137-4). As a result of the
Article 81 proceeding, William Eveleth was appointed as
Plaintiff's temporary guardian pending a hearing on
GG&P's application scheduled to take place on April
5, 2013. (Docket No. 141 ¶ 12). C&C acknowledged the
temporary guardianship in correspondence to GG&P dated
March 6, 2013. (Docket No. 141 ¶ 13; Docket No. 141-6).
March 11, 2013, shortly after Plaintiff emerged from his
coma, GG&P obtained Plaintiff's mark and/or initials
upon (1) a Contingent Fee Agreement; (2) an
“acknowledgement” that GG&P's fees and
costs incurred in connection with the February 27, 2013
Article 81 proceeding would be asserted as a lien against
Plaintiff's recovery in his litigation for personal
injuries; and (3) a pre-typed letter addressed to Vincent S.
Cimini, who served as lead counsel from C&C in this
matter, advising: “I am no longer in a coma . . . I am
most satisfied with the Greenwald Law Offices representing
me. Please do not do any work on my behalf.” (Docket
¶¶ 3, 15; Docket No. 137 ¶ 16; Docket No.
correspondence dated March 19, 2013, Gary Greenwald of
GG&P forwarded a copy of the termination letter to
Vincent S. Cimini of C&C and advised:
I am so incredibly troubled by your obvious stupidity. . . .
I have in my possession a retainer signed by the lawfully
appointed guardian of Justin Maher. In addition, now that Mr.
Maher is out of the coma, he has signed a retainer with me in
the presence of his grandparents. He has also signed a letter
that was written to you to stop having any involvement in
(Docket No. 141 ¶ 16; Docket No. 141-8).
April 15, 2013, GG&P served a four-page Notice of Claim
by Plaintiff against Port Jervis City School District at the
Port Jervis School District Superintendent's Office.
(Docket No. 143 ¶ 5; Docket No. 143-1). On June 12,
2013, Jamie C. Greenwald, Esq., of GG&P participated in
Plaintiff's pre-litigation deposition pursuant to New
York General Municipal Law § 50-h. (Docket No. 143
¶ 6; Docket No. 143-2).
28, 2013, GG&P commenced a lawsuit for Plaintiff's
injuries by filing a Summons and Complaint against Ms. Railo,
QBS, Port Jervis City School District, and New Life Christian
Day School in the Supreme Court of the State of New York (the
“State Court Action”). (Docket No. 137 ¶ 17;
Docket No. 137-8). GG&P has submitted contemporaneous
time records, which, according to GG&P, document work
performed by GG&P in connection with the State Court
Action. (Docket No. 137-11; Docket No. 137 ¶ 23).
According to those records, GG&P devoted approximately
107 hours of attorney and paralegal time in furtherance of
the State Court Action. (Docket No. 137-11 at 13). That work
amounted to $33, 235.25 in billable fees, based on the rates
reflected in the time records. (Id.). According to
the records, GG&P also incurred $10, 623.69 in
out-of-pocket expenses in furtherance of the State Court
Action. (Docket No. 137-11 at 18).
has submitted a declaration describing the work performed by
GG&P in connection with the State Court Action.
(See Docket No. 137 ¶ 23). Among other things,
between July 3, 2013 and July 18, 2013, GG&P filed
affidavits of service reflecting completed service of process
on the defendants in the State Court Action. (Docket No. 143
¶ 8; Docket No. 143-4). On August 21, 2013, Defendant
New Life Christian Day School filed a motion to dismiss
Plaintiff's complaint in the State Court Action. (Docket
No. 143 ¶ 9; Docket No. 143-5). Between August 21, 2013
and September 12, 2013, in opposition to New Life Christian
Day School's motion to dismiss, GG&P submitted a
brief response arguing that the motion was premature,
followed by a two-page sur-reply ...