DECISION By this proceeding, petitioner, Dennis P. Ahern, Esq., asks the court to fix and determine compensation for services rendered Michele April in connection with proceedings in this court.Jurisdiction has been obtained over respondent Michele April, who has failed to file an answer or otherwise appear in opposition to the relief requested. As the pleading before the court is unopposed, it is deemed to be due proof of the facts therein stated (SCPA 509).The record reflects that captioned decedent died testate on October 17, 2006. On or about March 5, 2007, the decedent’s last will and testament was admitted to probate, whereupon letters testamentary issued to Louis Nieto, Jr. and Deborah Perciballi. The co-fiduciaries commenced a proceeding against Michele April (respondent herein), obtaining a $127,942.62 judgment against respondent, which was later affirmed (Matter of Nieto, 70 AD3d 831). Respondent and an unrelated party had also commenced a compulsory accounting proceeding, which resulted in the filing of the co-executors’ intermediate accounting. There were also proceedings for removal of the fiduciaries and turn over of estate assets, in addition to other ongoing litigation. Eventually, all pending proceedings were settled and memorialized in a stipulation filed with the court on or about September 6, 2011.Petitioner herein (Attorney Ahern) avers that he represented respondent with respect to various aspects of the Nieto litigation, since they entered into a retainer agreement on or about March 18, 2008. Respondent agreed to petitioner’s $350.00 hourly rate, and also agreed that petitioner’s fee would be paid out of respondent’s anticipated inheritance. Petitioner seeks compensation for services rendered between March 18, 2008 and November 17, 2014 in the amount of $190,810.37, with interest, which sum has been duly demanded and remains unpaid. Petitioner maintains that, as a result of his representation in the underlying contentious litigation, he relieved respondent of the significant judgment obtained by the co-fiduciaries against her inheritance, and argues that through his representation, respondent’s interests, as well as that of respondent’s daughter, were protected and their resulting recovery increased.Petitioner’s billing records reflect that a total of approximately five hundred thirty-eight (538.1) hours were spent rendering services to this respondent from March 18, 2008 to November 18, 2014. At counsel’s regular hourly rate of $350.00, the total fee amounts to $188,335.00. Petitioner also seeks reimbursement of disbursements in the total amount of $2,475.37. Petitioner represents that he has secured “Respondent’s first payment of $335,498.17 of her inheritance” but she continues to refuse to pay petitioner’s fee.Petitioner also supplies the court with a copy of the “Notice of Charging Lien” served upon the co-fiduciaries of captioned decedent’s estate on November 17, 2014 (Petitioner’s Exhibit A). A copy of petitioner’s retainer agreement with respondent reflects the counsel’s hourly rate and the parameters of the representation, as well as the signature of respondent, in her individual capacity, and as the “natural parent and guardian of Alexandra Nieto” (decedent’s daughter) (Petitioner’s Exhibit B).Reference to the August, 2011 stipulation executed by the parties in the underlying litigation is pertinent. As part of the preamble to the parties’ agreement, it is recited that the filed accounting reflected the $127,942.62 judgment against respondent April, as well as the $124,963.34 claim against her from household expenses. The agreement of the parties reflected the withdrawal of the $124,963.34 claim, and also provided for the satisfaction of the $127,942.62 judgment out of a separate California action, with the proviso that the estate would not be filing or recording the judgment in any court of competent jurisdiction, or make any effort to collect such judgment “except from any recovery on the claims against Henry Ng, et al.” (Stipulation dated 8/25/2011, p.14, 19). Interestingly, the stipulation contains an agreement to pay petitioner Ahern $100,000.00 for respondent April’s legal fees by Glen Nelson. Nelson was a 50 percent owner of the companies in which this decedent had an interest and was an incoming testamentary trustee. There was also a waiver by April and Nelson of all claims against the estate and the fiduciaries “for any and all legal fees and expenses incurred by Michele (April)” (Stipulation dated 8/25/2011, p.15, 24). The court is aware of subsequent attempts to revise the stipulation, but there are no amended stipulations on file. Further, based upon the representations of petitioner, an officer of the court, and the absence of opposition from respondent, the court must conclude that the promised payment of fees from Glen Nelson, who is now deceased, never came to pass. It is also worth noting that the aforementioned intermediate accounting, which was eventually judicially settled, reflected an estate value of approximately $26,000,000.00.As indicated, petitioner has filed a charging lien with the co-executors. The charging lien is a statutory remedy codified in Judiciary Law §475 that grants the attorney “a security interest in the favorable result of [the] litigation” (Butler, Fitzgerald & Potter v. Gelmin, 235 AD2d 218, 219). Generally, where the parties are adult and competent, the compensation of an attorney is governed by their express agreement, which is not restrained by law (Judiciary Law §474).According to petitioner, he billed respondent periodically for services rendered, apparently without objection, but was repeatedly advised by respondent that she would be unable to pay until she received her inheritance. Although petitioner has indicated that respondent’s first payment is now available to her, she has still failed to pay any of the outstanding fee owed (Petition, p.2, 7-8). It is also noted that, in the event a bill or inventory is issued to a client and held without objection for an unreasonable period of time, the act of holding it for such a period will be deemed acquiescence, raising an actionable account stated, and the attorney or law firm need not establish the reasonableness of the fee (Whiteman Osterman & Hanna, LLP v. Oppitz, 105 AD3d 1162, 1163; see Pryor Cashman, LLP v. U.S. Coal Corp., NYLJ *1, 2/14/2013).Notwithstanding the foregoing, however, as a matter of public policy, the courts pay particular attention to fee arrangements between attorneys and their clients (see Jacobson v. Sassower, 66 NY2d 991; see also In re Piterniak, 38 AD3d 780). Petitioner having presented the issue to the court for determination pursuant to SCPA 2110, however, the court must be guided by the longstanding principles recognized by Matter of Freeman, 34 NY2d 1 and Matter of Potts, 123 Misc 346, aff’d 213 AD 59, aff’d 241 NY 593. Reasonableness is determined on a quantum meruit basis using generally recognized criteria, namely the time spent in rendering the legal services, the nature of those services, the difficulties encountered, the worth of the estate, the results obtained, the amount involved, and the professional standing of counsel (see Matter of Freeman, supra; Matter of Potts, supra). While the time spent by counsel is only one factor to be considered in determining reasonable compensation (see Matter of Kentana, 170 Misc 663), and often serves as an appropriate starting point (see Estate of Gillett, 139 Misc2d 188), it is clear that the underlying litigation was multi-faceted and labor intensive.In the absence of opposition and having due regard for all the elements relevant to the fixing of legal fees (see Matter of Freeman, supra; Matter of Potts, supra), the court fixes and determines the fair value of counsel’s services in the full amount requested; to wit, $188,335.00, plus $2,475.37 in disbursements1. Statutory interest is awarded only from the date of the decree or judgment to be entered herein. All sums awarded in connection herewith shall be paid from respondent’s share of the estate currently being held by the co-fiduciaries, pursuant to SCPA 2110(2).Submit decree.
