State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522417 

________________________________

In the Matter of the Estate

of BRADLEY MARC GINSBURG, 

Deceased.

HOWARD I. GINSBURG, as

Administrator of the MEMORANDUM AND ORDER

Estate of BRADLEY MARC

GINSBURG, Deceased,

Respondent;

McCALLION & ASSOCIATES LLP

et al.,

Appellants,

et al.,

Respondents.

________________________________

Calendar Date: September 8, 2016

Before: Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.

__________

McCallion & Associates LLP, New York City (Kenneth F.

McCallion of counsel), for McCallion & Associates LLP, appellant,

and Leland T. Williams, Rochester, appellant pro se.

Holmberg Galbraith, LLP, Ithaca (Anna K. Holmberg of

counsel), for respondent.

__________

Egan Jr., J.

Appeals from those parts of an amended decision and a

decree of the Surrogate's Court of Tompkins County (Cassidy, S.),

entered June 19, 2015 and July 8, 2015, which granted

petitioner's motion to compromise the wrongful death claim
-2- 522417 

asserted by decedent's estate.

On February 17, 2010, Bradley Marc Ginsburg (hereinafter

decedent), then a freshman at respondent Cornell University in

Tompkins County, jumped to his death from the Thurston Avenue

Bridge – one of several bridges extending across the gorges

located on or near Cornell's campus. The bridge in question,

which spans Falls Creek Gorge and connects two portions of

Cornell's campus, is owned by respondent City of Ithaca. 

Petitioner, who is both decedent's father and an attorney

licensed to practice in this state, was granted letters of

administration in May 2011 and thereafter retained respondent

Leland T. Williams as counsel for the estate. In late 2011,

Williams commenced an action upon petitioner's behalf against,

among others, Cornell and the City of Ithaca in the United States

District Court for the Northern District of New York. The

complaint set forth 14 causes of action sounding in, among other

things, wrongful death and premises liability and sought damages

in the amount of $180 million, including $12 million in punitive

damages.

After District Court dismissed the punitive damages claim

and all claims against those Cornell representatives or employees

named in their individual capacities, petitioner terminated

Williams' representation and retained respondent McCallion &

Associates, LLP (hereinafter the firm) as counsel.1 Thereafter,

Kenneth F. McCallion (hereinafter McCallion) – a principal

therein – entered into settlement negotiations with Cornell and

the City of Ithaca upon petitioner's behalf. After much

discussion, the parties devised a proposed settlement of the

wrongful death claim – specifically, that petitioner would accept

a monetary sum from the City of Ithaca and, as to Cornell, would

agree that a scholarship would be established in decedent's

1 District Court subsequently dismissed the balance of the

negligence claims against Cornell and the City of Ithaca

(alleging personal injury, conscious pain and suffering, in loco

parentis and contractual relationship) – leaving only the

wrongful death claim intact.
-3- 522417 

name.2 While McCallion was not opposed to this resolution, he

advised petitioner via email that, "[b]efore [he] sign[ed] onto

any settlement proposal," petitioner and the firm would need to

"reach an understanding as to the allocation of any settlement

funds" – namely, that "the balance of the net cash component of

the settlement," then anticipated to be $200,000, would be

allocated to the firm as counsel fees. In response, petitioner

advised District Court that he, in his capacity as co-counsel,

would be handling all further negotiations, and McCallion was

excluded from the settlement conferences that followed.

In September 2014, petitioner entered into stipulations of

settlement with Cornell and the City of Ithaca resolving the

wrongful death claim. Specifically, the City of Ithaca agreed to

pay $100,000 in settlement of the District Court action against

it, and Cornell agreed to establish a perpetual scholarship in

memory of decedent. Although documentation in the record

reflects that such scholarship, if funded by a private donor,

would have required an endowment of approximately $1.6 million,

the stipulation of settlement provided that the scholarship would

be established "using existing financial aid funds" and, inasmuch

as Cornell was neither "allocating any new money" to the

scholarship nor otherwise making any payment to petitioner, the

scholarship itself had "no monetary value" – except to the

student recipients thereof. District Court thereafter signed off

on the respective stipulations of settlement.

In November 2014, petitioner sought leave in Surrogate's

Court to compromise the wrongful death claim against Cornell and

the City of Ithaca. In conjunction therewith, petitioner asked

that both Williams and the firm (hereinafter collectively

referred to as respondents) be denied counsel fees – essentially

contending that Williams and McCallion each had engaged in

conduct that was contrary to the interests of the estate. 

Respondents opposed petitioner's requests and cross-moved to,

among other things, disapprove the settlement agreements and

sanction petitioner in accordance with Judiciary Law § 487. By

2 Cornell "made clear that this would be the only basis

upon which [it] would settle the case."
-4- 522417 

amended decision entered June 19, 2015, Surrogate's Court, among

other things, granted petitioner's request to compromise and

settle the wrongful death claim, allocated the $100,000

settlement received from the City of Ithaca to that claim and,

after deducting for funeral fees ($19,080.63) and litigation

expenses ($45,324.95 for the firm and $1,866 for Williams),

awarded counsel fees to respondents consistent with the terms of

the respective retainer agreements – $7,420.25 to Williams and

$11,241.68 to the firm. After deducting the fees and

disbursements due to petitioner's attorney, petitioner and his

spouse – as the sole distributees of decedent's estate – received

$3,560.37. Surrogate's Court thereafter entered a decree to that

effect, and respondents now appeal from portions of the amended

decision and decree – most notably with respect to the court's

finding that the settlement with Cornell did not have any

monetary value to decedent's estate and, hence, was not properly

included in the computation of counsel fees.3

The crux of respondents' argument upon appeal is that

Surrogate's Court abused its considerable discretion in

permitting petitioner to compromise and settle the wrongful death

claim against Cornell and the City of Ithaca – specifically, that

Surrogate's Court improvidently determined that the scholarship

established by Cornell in memory of decedent had no monetary

value for purposes of computing the requested counsel fees. We

disagree.

There is no question that a client "may at any time before

judgment, if acting in good faith, compromise, settle, or adjust

his [or her] cause of action out of court without [counsel's]

intervention, knowledge, or consent, notwithstanding any

contingent fee agreement and even though he [or she] has agreed

with [counsel] not to do so" (Dagny Mgt. Corp. v Oppenheim &

3 No appeal lies from the amended decision of Surrogate's

Court; rather, it is the decree itself that constitutes an

appealable paper (see Matter of Carvel, 97 AD3d 571, 571-572

[2012]; Matter of Cassini, 95 AD3d 1310, 1310 [2012]). 

Accordingly, respondents' appeal from the amended decision is

dismissed.
-5- 522417 

Meltzer, 199 AD2d 711, 713 [1993] [internal quotation marks and

citation omitted]; see Rules of Professional Conduct [22 NYCRR

1200.0] rule 1.2 [a]). Similarly, "notwithstanding the terms of

the agreement between them, a client has an absolute right, at

any time, with or without cause, to terminate the attorney-client

relationship by discharging the attorney" (Campagnola v

Mulholland, Minion & Roe, 76 NY2d 38, 43 [1990]; see Doviak v

Lowe's Home Ctrs., Inc., 134 AD3d 1324, 1326 [2015], lv denied 27

NY3d 904 [2016]). Finally, "Surrogate's Court is vested with

broad discretion to fix the reasonable compensation of an

attorney who renders legal services to a fiduciary of an estate,

subject to modification only where that discretion has been

abused" (Matter of Benware, 121 AD3d 1331, 1332 [2014] [citations

omitted]). Notably, such authority is "independent of the terms

of a retainer agreement or the consent of interested parties to

the requested compensation" (Matter of Elenidis, 120 AD3d 1229,

1231 [2014], lvs denied 24 NY3d 910 [2014], 25 NY3d 904 [2015];

see Matter of Greenfield, 127 AD3d 1189, 1191 [2015], lv denied

26 NY3d 904 [2015]).

Contrary to respondents' assertion, we discern no basis

upon which to disturb the determination of Surrogate's Court that

petitioner, a licensed and experienced real estate attorney,

exercised due diligence in the performance of his fiduciary

duties relative to decedent's estate, including giving careful

consideration to the settlement offers at issue. Nor are we

persuaded that petitioner's ultimate decision to compromise and

settle the wrongful death claim against Cornell and the City of

Ithaca in exchange for $100,000 and the establishment of a

perpetual scholarship in decedent's memory evidenced bad faith or

otherwise called into doubt the performance of his fiduciary

duties. Hence, as to the award of counsel fees, the issue

primarily distills to whether Surrogate's Court abused its

discretion in concluding that the subject scholarship had no

monetary value to decedent's estate.

The retainer agreement entered into between Williams and

petitioner obligated petitioner to pay counsel fees in a

specified percentage "of any net recovery obtained"; a similar

provision in the agreement reached between the firm and

petitioner entitled the firm to a fee in the amount of one third
-6- 522417 

"of any amounts received by [petitioner] by way of settlement,

judgment or award, after deduction of any outstanding and unpaid

expenses." Respondents argue upon appeal, as they did in

Surrogate's Court, that the perpetual scholarship established by

Cornell in decedent's name had a minimum value of $1.6 million

and, therefore, their respective contingent fees should be based

upon such value plus the $100,000 monetary settlement received

from the City of Ithaca. Respondents' argument on this point,

however, misses the mark.

To be sure, the record reflects that, if the memorial

scholarship had been established by means of an endowment, a

private donation of approximately $1.5 to $1.6 million would have

been required to fund such scholarship in perpetuity. As set

forth in the affidavit from one of Cornell's representatives,

however, "Cornell never offered an endowed scholarship and made

clear that [it] would not do so." Rather, Cornell repeatedly

indicated "that existing financial aid funds would be used to

fund the scholarship, that federal regulations applicable to

Cornell as the administrator of such funds would apply, that the

recipient(s) would have to be financial aid eligible, and that

the recipient(s) would receive only the amount they would

otherwise be qualified to receive under applicable federal law

and Cornell financial aid policies." To that end, the

stipulation of settlement between petitioner and Cornell contains

the following language: "Cornell is solely using existing

financial aid funds to establish the scholarship . . . and is not

allocating any new money to fund this scholarship. Cornell [has]

insisted, and the parties agreed[,] that Cornell would not make

any payment to [petitioner] in any way whatsoever, whether

monetary or otherwise. There is no monetary value or any other

value to [petitioner] with regard to this settlement and no such

payment is incorporated in these terms of settlement. The

monetary value of the scholarship is only to those students who

receive a scholarship and no one else." 

Regardless of whether this language was inserted into the

final stipulation of settlement at Cornell's behest (as the

record suggests) or upon petitioner's insistence (as respondents

assert), the fact remains that petitioner simply did not receive

any money or any other tangible assets from Cornell as a result
-7- 522417 

of the settlement.4 Rather, as Surrogate's Court appropriately

found, petitioner – in his representative capacity as the

administrator of decedent's estate – received in settlement from

Cornell only the sentimental, "symbolic or moral value" of the

scholarship established in decedent's name. As the scholarship

itself clearly was not an asset of decedent's estate, Surrogate's

Court did not abuse its discretion in computing respondents'

respective counsel fees based solely upon the $100,000 monetary

settlement received from the City of Ithaca. To hold otherwise

not only would ignore the plain language of the stipulation of

settlement with Cornell but, further, would misconstrue the

nature of the scholarship itself by assigning – to decedent's

estate – a monetary value or benefit that exists only with

respect to the scholarship's actual recipients. Adopting

respondents' valuation analysis also would obligate decedent's

estate, which ultimately received less than $4,000 in settlement

proceeds and otherwise is devoid of assets, to pay a six-figure

bill for counsel fees – a result that hardly can be characterized

as reasonable, equitable or just. Respondents' remaining

contentions, to the extent that they do not lie outside the

jurisdiction of Surrogate's Court in the first instance (see SCPA

201), have been examined and found to be lacking in merit.

Garry, J.P., Lynch, Rose and Aarons, JJ., concur.

4 Indeed, as set forth in the affidavit of Cornell's

representative, "Cornell never offered – and would not have

established – the scholarship as an asset to the [e]state."
-8- 522417 

ORDERED that the appeal from the amended decision entered

June 19, 2015 is dismissed, without costs.

ORDERED that the decree entered July 8, 2015 is affirmed,

without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court