Motion by claimant's counsel for permission to file a retainer statement, nunc pro tunc, with the Office of Court Administration granted.
|Claimant(s):||LINDA K. DOUGHTY, as the EXECUTOR of the ESTATE OF JAMES E. PLITNICK (AKA) DAVID ALEXANDER|
|Claimant short name:||DOUGHTY|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||GUGLIOTTA & PONZINI, P.C.
By: John C. Gugliotta, Esq.
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||November 30, 2020|
|See also (multicaptioned case)|
This claim seeks compensation on behalf of the estate of James Plitnick for damages arising from Plitnick's death by suicide days after being discharged from the Capital District Psychiatric Center (CDPC). The claim alleges, among other things, that defendant failed to properly monitor, treat, assess, and diagnose Plitnick, and it asserts causes of action sounding in wrongful death, Plitnick's pain and suffering, medical malpractice, and loss of support for decedent's then-minor sons. Claimant's counsel now moves by way of Order to Show Cause for an order authorizing him to file a retainer statement, nunc pro tunc, with the Office of Court Administration (OCA). Neither claimant nor defendant has responded to the motion.
Claimant's counsel states that on March 10, 2014, his law firm was retained by decedent's sister, as administratrix of his estate, to represent the estate in a claim for medical malpractice against CDPC following his October 24, 2013 death by suicide (see Gugliotta Affirmation, ¶ 3, Exhibit A [Plitnick-Sullivan Letters of Administration, dated Aug. 29 2014], Exhibit B [Retainer Statement, dated Mar. 10, 2014]). Claimant's counsel further states that at the time his firm was retained, the firm's longtime administrative assistant had recently left to pursue other employment and a replacement had been hired, but that "it appears that the filing of a retainer statement as required by 22 NYCRR 691.20 (a) (1)) [sic], may have been inadvertently overlooked" (Gugliotta Affirmation, ¶ 3). Claimant's counsel states that this claim was commenced on November 25, 2014, and that, after several years of litigation, it was discovered that decedent had left a will, and claimant was named as executor of his estate and signed a new retainer agreement with claimant's counsel's firm (see id. at ¶¶ 4-7, Exhibit C [Claim No. 125298, served Nov. 25, 2014], Exhibit D [Certificate of Appointment of Executor, dated Aug. 1, 2019], Exhibit E [Retainer Statement, dated Jan. 22, 2019]). Claimant's counsel states that because his firm "believed that a retainer statement had already been filed on behalf of [decedent's estate] and [claimant] was merely acting as a representative of the same [estate] . . . , we did not believe that a new retainer statement was required" (id. at ¶ 7). Claimant's counsel states that after Ms. Doughty was substituted as claimant, the parties settled this claim through mediation in October 2019 (see id. at ¶ 8). Claimant's counsel states that his firm was unable to locate a retainer statement in their files during the process of preparing the compromise order to be filed in Putnam County Surrogate's Court following the settlement of this claim, and that their attempts to contact OCA to determine whether a retainer statement was ever filed were unsuccessful due to the onset of the Coronavirus pandemic (see Gugliotta Affirmation, ¶¶ 9-10). Claimant's counsel states that his firm attempted to resolve the issue by filing a retainer statement with OCA on March 26, 2020, but has yet to receive a response, and states that it is now his firm's understanding that the Court's permission to file a retainer statement nunc pro tunc is needed in order for such a filing to be effective (see id. at ¶ 11, Exhibit F [Retainer Statement, dated Mar. 26, 2020]).
Claimant's counsel argues that although his firm failed to file a retainer statement at the outset of this litigation, which is a condition precedent to receipt of attorneys' fees, the Court is empowered to grant him leave to file a late retainer statement, nunc pro tunc, in consideration of factors including the length of and reason for the delay in filing the retainer statement, and any prejudice to the party opposing the motion (see id. at ¶¶ 12-13). Claimant's counsel argues that the law office failure that led to the oversight in filing the retainer statement is a reasonable excuse inasmuch as it occurred when his firm "was transitioning from one legal assistant to another which appears to have resulted in the failure to file the retainer statement," and the mistake was not discovered until the preparation of the compromise order (id. at ¶ 14; see id. at ¶ 15). Claimant's counsel further argues that "there is absolutely no prejudice to the Defendant or to the Plitnick Estate," and that "notwithstanding our possible failure to file the retainer statement, the case was vigorously pursued and resulted in a successful outcome" (id. at ¶ 14). As noted above, neither claimant nor defendant has responded to the motion.
In support of this motion, claimant's counsel relies upon 22 NYCRR 691.20, which, as relevant here, requires an attorney who is engaged to provide representation in a wrongful death action based in malpractice and who is to be compensated wholly or in part on a contingent basis to "sign personally and file with [OCA] a written statement of such retainer or agreement of compensation" (22 NYCRR § 691.20 [a] ). Such filing must take place "within 30 days from the date of any such retainer or agreement of compensation," and it must contain certain information, including the date of the retainer agreement, the terms of the compensation, the names and addresses of the client and retaining attorney, the date and place that the wrongful death occurred, and certain information with respect to the referring party (see 22 NYCRR § 691.20 [a] , ). However, this rule applies to matters that are venued in courts within the Appellate Division, Second Department, whereas the instant claim is venued in the Albany County (see Murphy Correspondence, dated Dec. 3. 2014), which is situated in the Appellate Division, Third Department. Although the regulations governing matters that are venued in courts within the Third Department address the issue of cases that are taken on a contingency basis (see 22 NYCRR § 806.27), the Court has been unable to identify any rule similar to that of the Second Department that requires the filing of a retainer statement with OCA in order for an attorney to obtain contingency fees in a matter venued within the Third Department. Because claimant's counsel was not required, pursuant to the rules governing matters within the Appellate Division, Third Department, to file a retainer statement with OCA in order to receive a contingency fee with respect to this matter, his motion appears unnecessary.
Nevertheless, the Court notes that the compromise order with respect to the settlement of this matter is to be submitted to the Putnam County Surrogate's Court, which is within the Appellate Division, Second Department, and thus, to the extent the Second Department's requirement that a retainer statement be filed is applicable to that proceeding, the Court will address claimant's counsel's motion on the merits. As noted above, an attorney representing a client on a contingency basis in a personal injury action is required, in matters venued in the Appellate Division, Second Department, to file a retainer statement with OCA and failure to comply with that condition precedent restricts an attorney's ability to obtain legal fees in such matters (see Siracusa v Fitterman, 110 AD3d 1055, 1056 [2d Dept 2013]; Giano v Ioannou, 78 AD3d 768, 771 [2d Dept 2010]). However, the Second Department has held that "a late filing of a retainer statement is sufficient to preserve an attorney's right to recover fees where that attorney first obtains leave of court to file the statement nunc pro tunc" (Siracusa, 110 AD3d at 1056; see Giano, 78 AD3d at 771 [late filing without seeking leave of court to file the statement nunc pro tunc is insufficient]). A court may grant an attorney permission to file a late retainer statement nunc pro tunc pursuant to CPLR 2004, which empowers courts to grant extensions of time set forth in a statute or rule "upon such terms as may be just and upon good cause shown." In exercising its discretion to grant such relief, the court "may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the person opposing the motion" (Siracusa, 110 AD3d at 1056).
Although claimant's counsel's delay in filing the retainer statement is significant, given that this claim was filed six years ago, in November 2014, neither claimant nor defendant has responded to the instant motion, and they thus have shown no prejudice resulting from the late filing of the retainer statement. In any event, the Court can discern no apparent prejudice to the estate inasmuch as claimant entered into retainer agreements with claimant's firm at the inception of this claim and again when Ms. Doughty was named the representative of decedent's estate in place of Ms. Plitnick-Sullivan. With respect to the reason or excuse for the delay in filing the retainer statement, claimant's counsel asserts, as discussed above, that the filing of the retainer statement was overlooked during his firm's transition from one legal assistant to another, and that the failure to file the retainer statement was thus a case of law office failure. In the Court's view, claimant's counsel has demonstrated a clear case of law office failure, and the Court will, in the exercise of its discretion, permit claimant's counsel to file a late retainer statement nunc pro tunc with OCA, to the extent one is necessary, as discussed above (see Siracusa, 100 AD3d at 1056-1057 [granting leave to file a late retainer statement nunc pro tunc where an attorney failed to timely file a retainer statement due to law office failure consisting of "an isolated, inadvertent mistake"]).
Accordingly, it is
ORDERED, that claimant's motion number M-95844 is GRANTED.
November 30, 2020
Saratoga Springs , New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 126298, filed November 25, 2014;
2. Verified Answer, filed December 17, 2014;
3. Order to Show Cause, dated September 2, 2020;
4. Affirmation of John C. Gugliotta, Esq., of Ex Parte Notice of Order to Show Cause, dated August 20, 2020;
5. Affirmation of John C. Gugliotta, Esq., in Support of Order to Show Cause Authorizing Claimant's Counsel to File a Retainer Statement, Nunc Pro Tunc, dated June 16, 2020, with Exhibits A-F;
6. Order of Hon. W. Brooks DeBow, dated October 20, 2020;
7. Affirmation of Service of John C. Gugliotta, Esq., dated November 9, 2020.