Is it Legal Malpractice to Claim a Too Large Fee?
Plaintiff's husband was the victim of a really serious act of medical malpractice and hired defendant Buttafuoco to handle the case. he was successful, and settled the case for $ 3.7 million. What followed is a morass of claims, counterclaims and accusations.
Husband needed a guardian, and Wife was appointed. In Urias v Daniel P. Buttafuoco & Assoc., PLLC 2012 NY Slip Op 32792(U) November 14, 2012 Supreme Court, Suffolk County
Docket Number: 11-7186 Judge: Daniel Martin we see that Buttafuoco app led for court approval of his fee, and obtained it. The question is, does one apply the Med mal fee structure to the entire amount of recovery and then apportion to the various defendants, or does one apply the Med Mal fee structure individually to each defendant's settlement amount. Choice between these two methods yields a huge difference in the fee of almost $ 200,000.
"It is undisputed that Buttafuoco represented the plaintiff in prosecuting an underlying medical
malpractice action in Suffolk County Supreme Court for injuries to her husband, Manuel Urias. The
subject retainer agreement provided that Buttafuoco’s legal fees would be calculated pursuant to
Judiciary Law 474-a (2) and (4). Due to her husband’s physical condition, Buttafuoco successfully made application to the Supreme Court Nassau County (Guardianship Court) to have the plaintiff appointed as the guardian for her husband. The order and judgment of the Guardianship Court required the plaintiff to seek the approval of said court regarding the settlement and award of legal fees in the medical malpractice action. The malpractice action was settled in open court, with the plaintiff present, on April 2. 2009 in the sum of $3,700,000. In May 2009, the plaintiff retained Newman in place of Buttafuoco to seek the necessary approvals from the Guardianship Court. On July 20. 2009, counsel for the parties in the medical malpractice action appeared before the Hon. Paul J. Baisley to obtain a change in the settlement terms of that action not relevant herein. At that appearance, Buttafuocco submitted an exhibit (Exhibit 3 ) setting forth his calculation of the legal fees due to his firm by applying the statutory sliding scale of Judiciary Law 474-a (2) against the settlement amounts attributable to the four defendants in the medical malpractice action, and he indicated that “we followed the schedule.” On or about September 29.2009, Newman moved by order to show cause seeking. among other things. the necessary approvals from the Guardianship Court. By order dated October 27, 2009, the Guardianship Court (Phelan, J.) approved the transfer of assets from the plaintiffs husband to her pursuant to Mental Hygiene Law $8 1.2 1. and denied approval of the settlement of the medical malpractice action and the legal fees due “without prejudice to renewal after the Supreme Court, Suffolk County, has had an opportunity to revisit
the legal fees.” Said order noted that “There were several defendants, and the total sum was allocated among the various defendants. Section 474-a of the Judiciary Law was used to calculate the legal fees based upon each individual defendant’s settlement amount, which resulted in a greater legal fee than if the calculations had been based upon the total sum recovered.” On or about November 9,2009, Newman moved the Supreme Court, Suffolk County for an order “confirming the amount of legal fees awarded to Plaintiffs counsel and the manner in which such legal fees were calculated ...” By order dated March 24, 2010, the Court (Baisley, J.) confirmed “the amount of the legal fees awarded to plaintiffs counsel and the manner in which such legal fees were calculated ...” On or about May 20, 201 0, Newman moved the Guardianship Court for an order approving the settlement of the malpractice action, “including the amount of legal fees awarded to Plaintiffs counsel and the manner in which such legal fees were calculated ...” By order dated June 7,2010, the Guardianship Court (Phelan, J.) granted said motion citing the findings of the Hon. Paul J. Baisley, Jr. that “the legal fees approved by the court comport with the language and mandates of the statute .. .” In her complaint, the plaintiff alleges that, at the July 20, 2009 appearance, Buttafuoco misrepresented to the court that he was following the schedule set forth in Judiciary Law 474-a (2), and that the legal fees set forth in Exhibit 3 likewise were in accordance with that schedule. The plaintiff further alleges that Buttafuoco “intentionally materially misrepresented” to her that his legal fees and expenses as set forth in Exhibit 3 were in accordance with their written retainer agreement. that Buttafuoco illegally and improperly took the sum of $710,000 as a legal fee instead of the “lawful and proper legal fee in the amount of $5 16,226.40,” and that Buttafuoco deceived the plaintiff by using the Court’s approval of his legal fees in the amount of $864,552.37 to make her think that his taking a lee of only $71 0.000 benefit ted her and her husband. In addition, the plaintiff alleges that Buttafuoco disburscd a check payable directly to her husband prior to Newnian’s application to the Guardianship Court for an order permitting the transfer of all of his assets to her, which made her husband ineligible for Medicaid benefits from the Nassau County Department of Social Services, and resulted in an additional lien against the settlement proceeds in the medical malpractice action.
Here, a review of the complaint reveals that the plaintiff has plead a cognizable cause of action
for legal malpractice. In her complaint, the plaintiff alleges that Buttafuoco disbursed a check payable directly to her husband prior to Newman’s application to the Guardianship Court for an order permitting the transfer of all of his assets to her, which made her husband ineligible for Medicaid benefits from the Nassau County Department of Social Services, and resulted in an additional lien against the settlement proceeds in the medical malpractice action. Accordingly, that branch of the defendant’s motion which seeks to dismiss the plaintiffs Sixth Cause of Action for legal malpractice pursuant to CPLR 321 1 (a.) (7) is denied."