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Melendez v. Kim2/3/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
In this fee dispute Robert Wolf's receiver moves to affirm the report of the Special Referee awarding him 60% of the fee, and Meiselman and Gordon (M&G) cross moves to disaffirm the report and award 100% of the fee to it. Their applications are resolved as indicated herein. I accept the findings of fact made by the Special Referee in his lengthy and well considered report. He had the advantage of seeing the witnesses and was able to evaluate their demeanor testimony as well as the words they spoke. In addition, no transcript of the testimony has been ordered, so that the transcript is unavailable for review, and both Mr. Wolf's receiver and M&G seem content to ground their arguments on the Referee's extensive report. Reference is made to the report for a full statement of the facts.
Robert Wolf was retained by plaintiffs on about September 18, 1990. However, he did not have service of a summons and complaint effected until late February, 1992. By June 1992, the defendants answered and later demanded a bill of particulars which Wolf unaccountably did not serve until August 16, 1994. That bill claimed punitive damages.
In October 1994 there was motion practice to compel discovery and at least one defendant moved to dismiss for failure to prosecute. Wolf cross moved for an order authorizing the service of a late Notice of Medical Malpractice Action. Justice Silver denied the motion, finding that the case had not been abandoned and that Wolf had set forth documentation that because of medical conditions he could not comply timely with discovery demands. The Referee's report is unclear as to whether Wolf supplied an affidavit of merit or simply indicated difficulty obtaining one. Justice Silver struck the case from the calendar and directed compliance with discovery demands. Manifestly, it was Wolf's lack of diligence, purportedly caused by medical conditions, that exposed him to a motion to dismiss for failure to prosecute.
In December 1994 defendants moved to transfer venue to New York County. Wolf opposed the motion since, at the time he commenced the action, the plaintiffs were residents of Bronx County. Justice Silver directed a change of venue because the action was transitory and New York County was the most convenient forum. Wolf's application for reargument or renewal was denied in August 1995. Wolf appealed but his appeal was dismissed in July 1997.
Before then defendant Kim moved to strike the claim for punitive damages in the bill of particulars. In view of the transfer of venue, Justice Silver denied the application without prejudice. In July 1996 Justice Moskowitz in New York County granted defendants' motion to strike the punitive damages claim as not included in the complaint and granted plaintiffs leave to amend the complaint.
There were additional disputes about discovery. Wolf had retained trial counsel. Justice Moskowitz recused herself and the action was transferred to me. I granted trial counsel's motion to be relieved because that firm could not work with Wolf. In October 2000 I granted defendants' motion to strike the case from the trial calendar in view of the amended bill of particulars which newly claimed "stress disorder" and a "heart condition" caused by the alleged malpractice.
In March 2001 Wolf entered into an agreement with M&G pursuant to which Wolf would be paid 50% of any fee if settled before trial, 40% if settled within 24 hours after jury selection and one third if the case went to verdict. In June
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