NY State Senate Bill 2021-S9421

Senate Bill S9421

2021-2022 Legislative Session

Relates to applications for enhanced attorneys fees in medical, dental or podiatric malpractice cases

download bill text pdf

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 25, 2022	referred to judiciary

2021-S9421 (ACTIVE) - Details

See Assembly Version of this Bill:: A10452
Current Committee:: Senate Judiciary
Law Section:: Judiciary Law
Laws Affected:: Amd §474-a, Judy L
Versions Introduced in 2023-2024 Legislative Session:: S2410, A7450

2021-S9421 (ACTIVE) - Summary

Updates the procedure for applying for attorney's fees in medical, dental or podiatric malpractice cases in excess of the statutory contingent fee schedule in circumstances where the amounts set forth in such fee schedule are inadequate to compensate the attorney for the legal services rendered.

2021-S9421 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9421

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the judiciary law, in relation to applications for
enhanced attorney's fees in medical, dental and podiatric malpractice
cases

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose Of this bill is to ensure that victims of medical malprac-
tice and families who cannot afford to pay an hourly rate for counsel
nevertheless obtain high-quality legal representation willing to assume
the risk of working on a contingency fee basis.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill amends section 474-a (4) of the Judiciary Law so
that in the event a claimant's or plaintiff's attorney believes in good
faith that he or she is entitled to greater compensation than provided
for the fee schedule set forth in section 474(a) (2) of the judiciary

law, the attorney can apply for an allowance of greater compensation.
The judge, in their discretion, may grant or deny the application.
Factors to be considered by the court in order to grant the application
for an enhanced fee shall include whether the performance of the attor-
ney was superior (taking into account the attendant circumstances
including the result of the case in light of the nature of the liability
and damages issues), and whether the claimant or plaintiff consents;
provided that the granting of the application shall not be contingent on
such consent, and further provided that the attorney need not submit the
number of hours expended.

Section 2 of the bill sets forth the effective date.

 
JUSTIFICATION:

In 1985, New York enacted a set of contingency fee limitations to
address perceived abuses. They have not changed or been updated since
their enactment. The provision in the current law allows judges to exer-
cise discretion to diverge from the fee schedule but fails to delineate
specific factors that they should examine, which has resulted in incon-
sistent jurisprudence and motion practice.

This bill will provide clear guidance to claimants, attorneys, and judg-
es that the question of whether or not an attorney can receive a contin-
gent fee in excess of the fee limitations may be answered by looking at:
Whether the performance of the attorney was superior, taking into
account the attendant circumstances including the result of the case in
light of the nature of the liability and damages issues, and whether the
claimant or plaintiff consents; provided that the granting of the appli-
cation is not contingent on such consent, and further provided that the
attorney need not submit the number of hours expended. This bill only
includes the change as to how a court assesses applications from attor-
neys to obtain an enhanced fee, notwithstanding the fee scale, and
removes the requirement that a contingency fee attorney must submit
hours.


Adopting a reform to relieve attorneys from submitting hourly time
sheets is particularly appropriate and timely. A recent Court of Appeals
decision has required such submissions, even though medical malpractice
attorneys working on a contingency fee basis do not bill or get paid by
the hour, and accordingly do not keep time records.

 
LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:

None to the state.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2021-S9421 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9421
 
                             I N  S E N A T E
 
                               May 25, 2022
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary
 
 AN ACT to amend the judiciary  law,  in  relation  to  applications  for
   enhanced  attorney's fees in medical, dental and podiatric malpractice
   cases
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Subdivision  4  of section 474-a of the judiciary law, as
 amended by chapter 485 of the laws  of  1986,  is  amended  to  read  as
 follows:
   4.  In  the  event that claimant's or plaintiff's attorney believes in
 good faith that HE OR SHE IS ENTITLED TO GREATER COMPENSATION  THAN  THE
 AMOUNTS  PROVIDED  IN  the  fee schedule set forth in subdivision two of
 this section[, because of extraordinary circumstances, will not give him
 adequate compensation], AN application for greater compensation  may  be
 made  upon  affidavit with written notice and an opportunity to be heard
 to the claimant or plaintiff and other persons holding liens or  assign-
 ments  on the recovery. Such application shall be made to the justice of
 the trial part to which the action had been sent for trial;  or,  if  it
 had  not been sent to a part for trial, then to the justice presiding at
 the trial term calendar part of the court in which the action  had  been
 instituted;  or,  if  no action had been instituted, then to the justice
 presiding at the trial term calendar part of the Supreme Court  for  the
 county  in  the judicial department in which the attorney has an office.
 Upon such application, the  justice,  in  his  OR  HER  discretion,  [if
 extraordinary  circumstances are found to be present, and without regard
 to the claimant's or plaintiff's consent,] may fix as reasonable compen-
 sation for legal services rendered an amount greater than that specified
 in the schedule set forth in subdivision two of this section,  provided,
 however,  that such greater amount shall not exceed the fee fixed pursu-
 ant to the contractual arrangement, if  any,  between  the  claimant  or
 plaintiff  and  the  attorney.  FACTORS TO BE CONSIDERED BY THE COURT IN
 DETERMINING WHETHER TO GRANT AN APPLICATION FOR AN ENHANCED FEE PURSUANT
 TO THIS SUBDIVISION SHALL INCLUDE, BUT NOT BE  LIMITED  TO  WHETHER  THE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD15842-01-2
 S. 9421                             2
 
 PERFORMANCE  OF  THE  ATTORNEY  WAS  SUPERIOR,  TAKING  INTO ACCOUNT THE
 ATTENDANT CIRCUMSTANCES INCLUDING THE RESULT OF THE CASE IN LIGHT OF THE
 NATURE OF THE LIABILITY AND DAMAGES ISSUES, AND WHETHER THE CLAIMANT  OR
 PLAINTIFF  CONSENTS  TO THE APPLICATION; PROVIDED, HOWEVER, THAT NO SUCH
 DETERMINATION SHALL BE CONTINGENT  ON  SUCH  CLAIMANT'S  OR  PLAINTIFF'S
 CONSENT  THERETO;  AND,  PROVIDED  FURTHER,  THAT  THE ATTORNEY NEED NOT
 SUBMIT THE NUMBER OF HOURS EXPENDED. If the application is granted,  the
 justice  shall  make  a  written  order accordingly, briefly stating the
 reasons for granting the greater compensation; and a copy of such  order
 shall  be served on all persons entitled to receive notice of the appli-
 cation.
   § 2. This act shall take effect immediately.

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