Yalango v. Popp , 605 N.Y.S.2d 557 ( 1993 )

Weiss, P. J.

Appeals from an order and amended order of the Supreme Court (Kahn, J.), entered June 9, 1992 and June 18, 1992 in Albany County, which, inter alia, granted a motion by O’Connell and Aronowitz, P. C. for counsel fees.

Plaintiff Daniel A. Yalango suffered serious injuries resulting in permanent and severe brain damage allegedly as the result of medical malpractice committed at two hospitals. The law firm of O’Connell and Aronowitz, P. C. was retained to prosecute the claims. With diligent prosecution of the action, pretrial settlements of $1,300,000 from defendant Albany Medical Center Hospital and $630,000 from defendant Ellis Hospital were achieved. In this proceeding O’Connell and Aronowitz has moved for an order increasing its legal fee in excess of the fee set forth in the schedule in Judiciary Law § 474-a (2) which totaled $338,731.34.^* Instead, the law firm sought one third of the net settlement proceeds, i.e., $629,105.80. Supreme Court granted the motion and Yalango, through the committee of his property, appeals contending that no extraordinary circumstances exist and that the statutory schedule adequately compensated legal counsel.

Judiciary Law § 474-a (4) provides for a deviation from the statutory schedule where due to extraordinary circumstances the compensation provided is inadequate. There is no question in this matter but that competent legal counsel diligently pursued a very difficult case to a successful pretrial settlement. The determination of whether a fee greater than prescribed in the statutory schedule should be approved is specifically left to the discretion of the court (Judiciary Law § 474-a [4]; Hovanec Bldrs. & Dev. Corp. v Hines, 173 AD2d 951). The record here demonstrates the extraordinary result achieved as the result of the initiative, diligence, thorough and skilled professional legal services provided which included time, effort, ingenuity and dedication in securing 12 separate expert opinions, some from Florida, Massachusetts and Maryland. Albany Medical Center Hospital paid $300,000 out of its own funds in addition to the full amount of its liability insurance policy, $1,000,000. In addition to the documentation provided by O’Connell and Aronowitz, a court-appointed guardian ad litem reported in detail on the services and the results. The guardian ad litem agreed that liability was tenuous against both hospitals and opined that a jury could very well render a verdict for no cause of action. His report recognized the difficulty in proving malpractice and proximate cause and recommended approval of the application. It should further be noted that Yalango’s wife, also a plaintiff in this action, supported the application.

The determination of whether counsel fees are reasonable under the circumstances is a matter within the sound discretion of a trial court and should not be disturbed absent abuse of that discretion (Matter of Freeman, 34 NY2d 1, 9-10). The determination involves many factors: an evaluation of the time and labor required, the difficulty of the questions posed and the skill required to cope with the problems, the attorney’s experience, ability and reputation, the amount involved and the benefits produced by those services, the customary fees charged by others for similar services, the contingency or certainty of the compensation, the results obtained and the responsibilities involved (supra, at 9).

The statute requires only that the court "briefly stat[e] the reasons for granting the greater compensation” and make a finding of "extraordinary circumstances” (Judiciary Law § 474-a [4]); it does not require the court to either set forth how it weighed the various factors (Hovanec Bldrs. & Dev. Corp. v Hines, supra) or to make a separate finding that the fee provided in the statutory schedule was inadequate.

Mikoll, Yesawich Jr. and Cardona, JJ., concur.

* Initially, the request pertained only to the $1,300,000 settlement with Albany Medical Center Hospital, but was expanded to include the additional $630,000 settlement when Ellis Hospital settled.