Surrogate's Court, Queens County, February 1, 2019

The Morelli Law Firm, New York City (Perry S. Fallick of counsel), for petitioner.

This petition for leave to settle and compromise causes of action for the personal injuries and the wrongful death of decedent and to judicially settle the executor's account is determined as follows:

The discontinuance of the cause of action for the wrongful death of the decedent and the settlement of the cause of action for the personal injuries of the decedent in the amount of $450,000 is approved.

Attorney's fees are allowed in accordance with Judiciary Law § 474-a and shall include the preparation, execution and entry of the decree herein.

Petitioner also seeks an award for disbursements totaling $53,077.84. Petitioner's original schedule of disbursements sets forth expenses for, inter alia, legal research, and reimbursement for expenses paid to the following legal service providers: HealthPort; US Legal Support (NY); Provest; eLaw; Deluxe Delivery Systems; Uber Technologies; PM Legal; IOD Incorporated and Equitrac.

Since the schedule of disbursements failed to provide any description or explanation of the charges by the legal service providers, this matter was held in abeyance, pursuant to the decision of this court dated November 16, 2018, pending the submission by counsel of a detailed affirmation setting forth the nature, necessity and circumstances for these disbursements and an explanation of the authority relied upon for classifying same as reimbursable disbursements.

Petitioner has provided the court with the requested affirmation. The explanations for payments to the legal service providers are summarized as follows:

1. HealthPort—certified copies of medical records

2. US Legal Support (NY)—court reporting and transcription service

3. Provest—service of process

4. eLaw—calendar watch service

5. Deluxe Delivery Systems—only described as a "delivery service"

6. Uber Technologies—only dates for use of Uber car service are listed

7. PM Legal—service of subpoenas for records and witnesses at trial{**63 Misc 3d at 253}

8. IOD Incorporated—copies of electronic medical records

9. Equitrac—printing and copying in context of litigation.

Petitioner argues that all the expenses claimed and set forth in the schedule of disbursements should be allowed as reasonable and customary expenses of the litigation.

The right to be reimbursed for disbursements is entirely dependent upon the existence of statutory authorization (CPLR 8301; see North Oyster Bay Baymen's Assn. v Town of Oyster Bay, 150 AD3d 865, 868 [2d Dept 2017]; Allied Excavating Corp. v Graves Equip. Co., 99 AD2d 499 [2d Dept 1984]; Joseph M. McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C8301:1 at 191 [1981 ed]; Weinstein-Korn-Miller, NY Civ Prac ¶ 8301.00 [2d ed]; see generally e.g. Derr v Fleming, 108 AD3d 854 [3d Dept 2013]; Hartmann v Fox, 87 AD2d 885 [2d Dept 1982]). As none of the above listed expenses are specifically enumerated as appropriate disbursements in the statute, counsel is apparently relying on CPLR 8301 (a) (13) which allows other items to be taxed as disbursements "according to the course and practice of the court."

Initially, the court is mindful that medical malpractice actions, like most complex personal injury actions, are extremely lengthy in nature and characterized by extensive record production, prodigious expert disclosure exchanges, numerous depositions and quite frequently voluminous motion practice. It is also true that while plaintiff's counsel's fees are, by act of the legislature (see Judiciary Law § 474-a), limited in scope, the expertise of counsel and the costs associated to successfully prosecute such actions are greater than what is necessary to litigate other personal injury matters. As a result, the court is of the opinion that trial counsel is entitled to commonsense and practical guideposts in the court's consideration of what is a taxable disbursement in these actions.

Accordingly, the court finds, based upon the supporting documentation supplied, all of the disbursements sought with the exception of Deluxe Delivery Systems, Uber Technologies, parking and computerized legal research should be allowed.

As the supplemental affirmation does not contain any proof as to whom was provided parking and Uber services other than counsel, or why the special delivery service utilized should be classified in a manner other than regular office mailings, those items are clearly nothing more than ordinary office overhead and should be disallowed.{**63 Misc 3d at 254}

Additionally, the characterization of "computerized legal research" as a disbursement must be specifically addressed as these expenses have sporadically been requested over the last few years.

Petitioner has requested reimbursement of $5,605 for the expense of legal research paid to Thomson Reuters/Westlaw and argues that other courts have permitted disbursements for legal research in circumstances where that expense was not taken into account in computing the attorney's billing rates, and the normal practice for the firm was to bill the clients separately for these disbursements (citing Perez v Rodino, 184 Misc 2d 855, 859 [Sup Ct, NY County 2000]; Matter of Aitken, 160 Misc 2d 587 [Sur Ct, NY County 1994]; Matter of Herlinger, NYLJ, Apr. 28, 1994 at 28, col 6 [Sur Ct, NY County 1994]; Matter of Delancey, NYLJ, Sept. 25, 1996 at 26, col 2, 1996 NYLJ LEXIS 2692 [Sur Ct, Suffolk County 1996]).

The cases cited referencing courts of concurrent jurisdiction either are inapplicable (see Perez v Rodino), or are unpersuasive, as they completely misinterpret the distinction between a disbursement and a legal fee. Regardless of how counsel chooses to characterize the manner in which this item is billed, a legal fee is not, and can not be a disbursement.

For centuries, legal research and writing have constituted the basic foundational elements of the practice of law. Essentially, legal research is what counsel does in order to earn a fee; it constitutes a legal service rendered to a client. Attorney's fees have been historically disallowed as a disbursement (see Weinstein-Korn-Miller, NY Civ Prac ¶ 8301.04 [2d ed]). Legal research, whether performed by computer or with published, hard copy legal resources, is merely a substitute for an attorney's time and is not a separate taxable item (see United States for Use & Benefit of Evergreen Pipeline Constr. Co., Inc. v Merritt Meridian Constr. Corp., 95 F3d 153, 173 [2d Cir 1996]; see e.g. Matter of City of New York, 24 Misc 3d 1251[A], 2009 NY Slip Op 51948[U] [Sup Ct, Queens County 2009]; Noghrey v Town of Brookhaven, 17 Misc 3d 1102[A], 2007 NY Slip Op 51798[U] [Sup Ct, Suffolk County 2007]). It is a well settled rule in New York that attorney's fees are considered an incident of litigation and, unless authorized by statute, court rule, or written agreement of the parties, are not recoverable (see Hooper Assoc. v AGS Computers, 74 NY2d 487 [1989]; Culinary Connection Holdings v Culinary Connection of Great Neck, 1 AD3d 558, 559 [2d Dept 2003]) and will not be inferred (Campbell v Citibank, 302 AD2d 150, 154 [1st Dept 2003]).{**63 Misc 3d at 255}

Although petitioner states that the retainer agreement allows for reimbursement of the expenses for computerized legal research, this claim is belied by the express terms of the retainer agreement which make no reference to computerized legal research. In any event, the court would not be bound by said terms (see Matter of Stortecky v Mazzone, 85 NY2d 518 [1995]).

Accordingly, disbursements are granted in the amount of $46,919.17.

As set forth in the stipulation dated October 18, 2018, the Department of Social Services of the City of New York shall be paid in the sum of $45,000 in satisfaction of its Medicaid lien.

In the absence of opposition, the sum of $4,305.35 shall be paid to Joseph Levin P.C. in satisfaction of its claim.

In the absence of opposition, the sum of $32,808.58 shall be paid to LawCash in satisfaction of its lien.

The net proceeds of the settlement for the cause of action for personal injuries shall be distributed pursuant to decedent's will as set forth in the petition.